The opinion of the court was delivered by: James H. Jarvis United States District Judge
This is a race discrimination in hiring action brought pursuant to 42 U.S.C. § 1981 and 42 U.S.C. §§ 2000e, et seq. Plaintiffs Samuel O'Neal, Curtis Brown and Jered Croom contend that they were discriminated against on the basis of their race (African-American) when they were denied employment with Wackenhut as security police officers. Currently pending is defendant's motion for summary judgment [Court File #55]; motion for summary judgment on plaintiffs' disparate impact claims [Court File #98]; and motion for summary judgment regarding claims of Jered Croom [Court File #167]. For the reasons that follow, the motions for summary judgment will be denied with respect to the disparate treatment claim of Samuel O'Neal. In all other respects, these three motions will be granted.
I. Wackenhut and Its Hiring Practices
Wackenhut Services, Inc. (Wackenhut) is a wholly-owned subsidiary of The Wackenhut Corporation. Wackenhut's headquarters is located in Oak Ridge, Tennessee. Effective January 10, 2000, the United States Department of Energy (DOE) selected Wackenhut to replace Lockheed Martin Energy Systems, Inc., as the security and related support services contractor for four DOE facilities in Oak Ridge:
(1) the Oak Ridge Y-12 National Security Complex (Y-12 Site), (2) the Oak Ridge National Laboratory (ORNL), (3) the East Tennessee Technology Park (ETTP) (formerly known as K-25), and (4) the Federal Office Building. These four DOE facilities house classified materials pertaining to national security, secret scientific research, and the development of nuclear weapons. The Y-12 site maintains the nation's stockpile of weapons-grade uranium. Improper access into any one of these Oak Ridge facilities threatens national security, could benefit foreign governments or terrorist groups, and jeopardizes the safety of the nation's military and civilian populations.
Wackenhut's protective force is the first line of defense against terrorists or other assaults on DOE nuclear facilities in Oak Ridge. Wackenhut contends that it is committed to increasing diversity among its work force and preventing discrimination against employees and applicants. It contends that it makes a significant effort to increase its female and minority applicant pool. During 2004, Wackenhut sent recruiters to career fairs at a number of historically black colleges in Tennessee, Alabama and North Carolina. Its recruiters also make campus visits to a number of colleges, including historically black colleges. In addition, Wackenhut contends that it seeks to attract large numbers of qualified females and African-Americans exiting the military by recruiting at military bases in the Southeast United States.
As a federal contractor, Wackenhut is subject to oversight by DOE, an agency purportedly dedicated to insuring diversity in its contractor workforces. As part of its contract with DOE, Wackenhut is required to develop and implement an initial Diversity Plan and therefore file an annual Diversity Report with DOE. The Diversity Report must include a list of Wackenhut's accomplishments in diversity, diversity training, special emphasis programs, employee development, subcontracting to minority and woman-owned businesses, recruiting minorities and women, and community outreach. Failure to meet the requirements of the Diversity Report is considered a breach of Wackenhut's contract with DOE.
In addition to filing an annual Diversity Report, Wackenhut presents a diversity update to DOE on a quarterly or semi-annual basis. In the diversity update, Wackenhut reports overall EEO/AA statistics, highlights any underutilization in EEO job groups, discusses plans to address any underutilization, reports on its new hires, promotions, and terminations by race and gender, and discusses the resolution of employee concerns. In each diversity update, Wackenhut sets forth the effect of changes in the Service Worker category, which includes security officers, by race and gender and compares the changes to the company's utilization calculations.
As a federal contractor, Wackenhut is also required by executive order to prepare and implement a written Affirmative Action Plan (AAP) that guarantees equal employment opportunity to all individuals regardless of race, religion, color or national origin. Wackenhut files a copy of its annual AAP with DOE, which monitors Wackenhut for compliance through quarterly or semi-annual reports and Wackenhut's award fee process.
Wackenhut contends that its AAPs reflect that it has never underutilized minorities in the Service Worker category, which includes security officers. Plaintiffs claim that Wackenhut "consciously chose methodologies that drove down the availability numbers, shielding from the undiscerning eye the accelerating underutilization its discriminatory hiring practices had produced." In 2001, the availability figure for service workers was 9.6%, while Wackenhut's minority workforce was 20.7%. In 2002, the service worker availability was 11.4%, while the minority percentage of Wackenhut's workforce stood at 19.3%. In 2003, the minority availability percentage dropped to 5.2%, while the minority percentage of the workforce stood at 17.8%.
Defendants contend that contrary to plaintiffs' assertions, the drop in the availability percentage in 2003 was not part of a scheme by Wackenhut, but instead caused by three factors: (1) the promulgation of new 2000 census figures, which replaced the 1990 census figures previously in use, (2) the change in skilled job categories in the Service Worker group in the 2000 census, and (3) Wackenhut's decision to use the Knoxville MSA as the reasonable recruiting area because the area previously used (a mix between the Knoxville MSA and the national figures for service workers) was not consistent with the actual applicant flow, which was predominantly from the local area. Although these changes caused the availability of minorities to drop from 11.4% to 5.2%, these factors also raised the availability figures for female Service Workers - the only EEO group in which Wackenhut is actually underutilized - from 12.4% to 17.8%.
The degree to which Wackenhut meets DOE's expectations with regard to diversity and non-discrimination directly impacts Wackenhut's fee award. Under the DOE contract, Wackenhut does not receive a guaranteed fee. Rather, the fee is based on performance against a set of semi-annual performance objectives established by DOE. After each evaluation period, DOE evaluates Wackenhut's performance for each objective and determines the fee award based on the evaluation. One of the objectives, which accounts for 5% of the fee award, encompasses Wackenhut's efforts to eliminate underutilization in EEO job groups. As part of the performance evaluation, Wackenhut provides DOE with information on its applicant flow broken down by gender and race. The percent of minority offers for SPO-II (initially hired security officers) positions has exceeded the percent of known minority applicants from 2001 to 2004.
Wackenhut has consistently received high grades from DOE on its diversity and non-discrimination efforts and for the first half of 2003 received a perfect score of 100. In 2002 it was praised for its minority and female promotions, it being specifically noted that minorities received approximately 38% of the promotions at Wackenhut, despite comprising only 18.2% of the total workforce.
Initial security officers hired by Wackenhut are first hired in a position known as SPO-II. Wackenhut's process for recruiting and hiring SPO-IIs is regulated by a six-step process which, from 2001 to 2004, was affected by the actions of at least seven separate individuals - Barbara Bright-Ward, Steve Gibbs, Jon Johns, Lee Brooks, Bob Swing, Cecilia Hunter, and Brenda Curtis. Further, the entire process is regulated and scrutinized by Wackenhut's general manager, Jean Burleson, its assistant general manager, Lee Brooks, and by the DOE.
The SPO-II selection process has six steps: (1) recruitment; (2) receipt and analysis of resumes; (3) receipt and analysis of application materials and selection of candidates for in-person interviews; (4) in-person interviews and scoring; (5) selection of candidates for conditional job offers; and (6) medical and psychological examinations, physical testing, weapons qualifications, grip strength testing, and a security review. A candidate is required to successfully navigate his or her way through all six steps to join an SPO training class.
SPO-IIs are armed officers whose job responsibilities include providing access control to the four Oak Ridge facilities, conducting building searches, responding to alarms, and guarding weapons-grade nuclear material and classified material. Wackenhut's primary print advertisement for the SPO-II position is the local newspaper, The Knoxville News Sentinel. Since Wackenhut is mostly seeking candidates with military police, combat or special services experience, or corrections or law enforcement backgrounds, Wackenhut also advertises the position on several veteran, military, law enforcement and DOE job boards and web sites. Wackenhut also advertises the position internally by disseminating e-mails and by posting advertisements on bulletin boards at all of its sites.
The written advertisement for the SPO-II position states that applicants must: (1) possess a high school diploma or GED; (2) be 21 years old; (3) pass a drug screen and extensive background check; (4) pass a medical exam and psychological exam; (5) be able to run a mile in 81/2 minutes and the 40-yard dash in eight seconds; and (6) pass a marksmanship test and a grip strength test. The advertisement also states that the following qualifications are desired: (1) an Associates Degree or higher in Police Science, Criminal Justice, or Industrial Security; (2) work experience in law enforcement, nuclear security, correctional facility, or the military with significant experience in nuclear weapons security and anti-terrorism; or (3) participation in a regular physical fitness program. These same preferred qualifications are contained in the SPO-II job description and in the interview scoring sheet used to provide interview candidates with additional points if they have the above-described educational background or work experience.
The advertisement warns that applicants will be subject to a federal background investigation and must be able to meet eligibility requirements for access to classified material, including eligibility to receive and maintain a Q-level clearance for DOE. Interested applicants are instructed to mail a resume to Wackenhut at its Oak Ridge address.
As resumes arrive in the Wackenhut recruiting office, they are reviewed by the Recruiting and Staffing Specialist, Barbara Ward, formerly Barbara Bright. Bright-Ward has a Masters Degree in Human Resources Development from the University of Tennessee. She is supervised by Wackenhut's Director of Human Resources, Brenda Curtis.
Wackenhut receives resumes from out-of-state and other parts of Tennessee. 84.5% of the Tennessee applicants come from the Knoxville MSA (Anderson, Blount, Knox, Loudon, Sevier and Union Counties), and the four counties adjoining Anderson County (Scott, Morgan, Campbell and Roane). Of the applicants from this ten-county area, 59.5% are from the Knoxville MSA.
Bright-Ward screens the resumes to determine whether the applicants possess the required minimum qualifications and any of the preferred qualifications listed in the job advertisement and in Wackenhut's written job description for SPOIIs. Ms. Bright-Ward would be unaware of the applicant's race. If, upon her review, a candidate does not possess the minimum qualifications, or at least one of the preferred qualifications, Ms. Bright-Ward sends the candidate an "AE" letter. An AE letter thanks the candidate for submitting a resume and requests the candidate to voluntarily fill out an EEO form to be used to monitor Wackenhut's compliance with its Equal Opportunity requirements. An AE letter also informs the candidate that the company is processing other candidates that better meet the desired qualifications of the SPO-11 position and that the candidate's resume will be kept on file for six months.
If the resume indicates that the candidate possesses the minimum qualifications and some of the preferred qualifications, the candidate is sent a "DB" letter and a five-page application to complete. The application includes an EEO form that requests the applicant to voluntarily identify his or her ethnic category. The DB letter states that, to be considered, the applicant must complete the enclosed application and return it to the recruiting office within two weeks from the date of the letter. The DB letter also informs the candidate that the application will remain on file for six months.
Ms. Bright-Ward described her methodology with regard to the initial screen of resumes:
Q: What are you screening them for, what's your methodology and your approach to the screen?
A: I'm looking for minimum qualifications. One of the things that - I'm looking for minimum qualifications and then the things like military service, with significant experience in like military police or nuclear security or elite weapons, combat experience, that type of military experience or law enforcement experience, correctional facility experience. If someone has a degree in Criminal Justice, Police Science, or a participation in a recognized physical fitness program. Those are the things that we're looking for.
These same criteria are contained in the written SPO-II job description and on the scoring sheet used during the SPO-II interview process.
A new recruiting specialist, Amanda Smith, was hired by Wackenhut in March 2005. Bright-Ward testified that she trained Smith to screen applications based on the minimum and preferred qualifications which were the same as those which she had used. Bright-Ward testified that she used the same process to screen every candidate for an SPO-II position, and that she was not permitted to deviate from the written criteria or process without explicit written approval from her supervisors.
Upon receipt of an application, the EEO form is removed from the application by the receptionist and given to Wackenhut's Diversity Coordinator, who files it in a separate file. No one else in the Recruiting Department at Wackenhut receives a copy of the EEO form. The application, resume and any other documentation submitted by the candidate are then photocopied and placed in a folder. After approximately 15 to 20 folders have been created, the folders are forwarded to Steve Gibbs for review. A cover sheet is created to accompany the folders that lists the names of the applicants and contains columns on which Gibbs can make notes and indicate whether the applicant should be contacted for an in-person interview.
Gibbs' review of the applications is guided by the same set of minimum and preferred qualifications contained in the SPO-II job description used by Bright-Ward to screen resumes. Gibbs testified that he will not grant an interview to an applicant who fails to properly fill out the entire application. Gibbs also will not consider an applicant for an interview if the applicant has been terminated for cause from a previous job, has jumped repeatedly from job to job, or has unexplained gaps in his or her employment history. Gibbs also will not grant an interview to applicants who have a criminal conviction listed on their application. He testified that his experience with DOE security clearance procedures taught him that a criminal conviction can delay an applicant's receipt of the necessary DOE clearance for several years, thus rendering an applicant unuseable by Wackenhut.
After reviewing the application, Gibbs indicates on the cover sheet which candidates should be contacted for an in-person interview and returns the cover sheet and folders to Bright-Ward. At no time during his review of the applications is Gibbs provided with the EEO sheets or any other information regarding the race of the applicants. After receiving the cover sheet indicating which candidates should be granted an in-person interview, Bright-Ward or someone from the HR staff contacts the candidates and arranges a time for an interview. To reduce subjectivity and create greater uniformity across interviews, Wackenhut has implemented the following steps in the interview process:
(i) All SPO-II interviews are structured interviews with two trained interviewers,
(ii) All interview questions are scored on a 0-5 scale and each score must be a consensus score agreed upon by both interviewers, and
(iii) The total interview score must be adjusted upward according to a written point scale matching a candidate's educational background and work experience with ...