Major v. Treen Plaintiffs' Motion for an Award of Attorneys' Fees and Expenses; Statements of Time and Expenses; Affidavits

    No. 92-

In The

Supreme Court of tf)e Hm'tetJ States
October Term, 1992

Thresa Kuhn, 

v.
Petitioner,

Island Creek Coal Company,
Respondent.

Petition For A W rit Of Certiorari 
To The United States Court Of Appeals 

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

J ulius L. Chambers 
*Charles Stephen Ralston 
E ric Schnapper 
Marina Hsieh

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner
"■Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

Q u e s t io n s  P r e s e n t e d

1. Should this Court grant certiorari to resolve a 
conflict among the circuits as to whether provisions of the 
Civil Rights Act of 1991 should be applied to cases pending 
on the date of its enactment?

2. In the face of a presumption of discrimination, 
may a movant-employer obtain a summary judgment ruling 
merely by articulating a non-discriminatory explanation 
where the non-movant employee has refuted, by evidence in 
the record, the employer’s proffered justification?

P a r t ie s

All of the parties to this action are listed in the 
caption.



TABLE OF CONTENTS

Questions Presen ted ...................... • ....................... 1

Pa rties .........................................................................   1

TABLE OF AUTHORITIES .....................   iv

Opinions Be l o w .................................................       1

Jurisdiction ....................   2

Statute In v o l v e d .............................................   2

Statement of the Case .................................  5

A. The Proceedings B e low ...............................  5

1. The Disparate Impact Claims. . . .  5

2. The Disparate Treatment
Claims. ...........................................  2

3. The Decision o f the Court o f
Appeals. ..........................   7

B. Statement o f F a c ts .....................   9

1. The Disparate Impact Claims. ...........   9

2. The Disparate Treatment Claims. . . .  11

ii



Ill

Reasons for Granting the Writ ..........................  13

I. The Courts of Appeals Are in 
Conflict Over Whether and to 
What Extent the Civil Rights 
A ct of 1991 Should Apply to 
Cases Pending on Its Effective 
Date, a  Question of Great
National Importance ........................  13

A. Introduction..................................... 13

B. The Dispute Over the Language
o f the Statute. ...............................  13

C. The Dispute Over Substantive
and Procedural Changes.............  15

D. The Dispute Over This Court’s 
Decisions in Bradley, Bennett,
Bowen, and B onjom o..................  17

E. The Issue is o f Great National
Importance. .................................. 18

F. Certiorari Should Be Granted in
the Present C ase...........................  19

II. Certiorari Should be Granted 
to Resolve the Conflict Among 
the Circuits as to the Burden of 
Proof on a  Plaintiff in a  Title 
VII Action in Overcoming a 
Rebuttal of a  Prima Facie Case 
of D isparate Treatment....................  22

Conclusion 24



IV

TABLE OF AUTHORITIES

American Trucking Assns. v. Smith, 496 U.S. 167 
(1990)........................................      19

Batson v. Kentucky, 476 U.S. 79 (1986)........................... 24

Baynes v. A.T.&T. Technologies, Inc .,___F .2 d___ , 1992
WL 296716 (11th Cir. Oct. 20, 1992) . ...............  16

Bennett v. New Jersey, 470 U.S. 632 (1985) .................... 17

Bowen v. Georgetown University Hospital, 488 U.S. 204
(1988) .................     17

Cases: Pages:

Bradley v. Richmond School Board, 416 U.S. 696 (1974) 17

Bruno v. W.B. Saunders Co., 882 F.2d 760, 766 (8th Cir. 
1989), cert, denied sub nom., CBS, Inc. v. Bruno,
493 U.S. 1062 (1990) ..............................................  23

Butts v. City of New York (2d Cir. No. 92-7850).......... 15

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) . . . . . . .  19

City of Burlington v. Dague, 505 U .S .___, 120 L.Ed.2d
449 (1992)................................................................. 13

Davis v. City and County of San Francisco, 1992 WL
251513 (9th Cir. Oct. 6, 1992) .......... 13, 15, 17, 20

Dothard v. Rawlinson, 433 U.S. 321 (1 9 7 7 )............  19, 20

EEOC v. Arabian American Oil C o .,___U .S .___ , 111
S.Ct. 1227 (1991)..................................................... 15



V

Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 
1992)...................................................................  14, 15

Pages:

French v. Grave Mfg. Co., 656 F.2d 295 (8th Cir. 1981) 20

Galbraith v. Northern Telecom, 944 F.2d 275 (6th Cir.
1991) ...........................................................................22

Gersman v. Group Health Association, In c .,___F .2 d___ ,
1992 WL 220163 (D.C. Cir.
September 15, 1992) .................................. 14, 16, 17

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) . . .  24

Griggs v. Duke Power Co., 401 U.S. 424 (1971)............  19

Harvis v. Roadway Express, Inc., 1992 Lexis 19436 (6th
Cir. Aug. 24, 1992) ................................................  14

Hicks v. Brown Group, Inc., 946 F.2d 1344 (8th Cir. 1991),
vacated and remanded, 503 U .S .___, 117 L.Ed.2d
485 (1992)................................................................. 14

Holt v. Michigan Dept, of Corrections, 1992 Lexis 21161
(6th Cir. Sept. 11, 1992)......................................... 14

James Beam Distilling Co. v. Georgia, 501 U .S .___, 115
L.Ed.2d 481 (1991) ................................................  19

Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.
1992) ........................................................................  14

Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494
U.S. 827 (1990) .......................................................  17



V I

Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.
1992)..............................................................  15, 16, 21

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 
167 (5th Cir.), reh’g denied, 920 F.2d 259 (5th Cir. 
1990)..........................................................................  20

Luddington v. Indiana Bell Tel. Co., 966 F.2d 225, reh’g.
denied,___F .2 d___ (7th Cir. 1992).............. 16, 17

MacDissi v. Valmont Industries, 856 F.2d 1054 (8th Cir.
1988)..........................................................................  22

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)23

Mesnick v. General Electric, 950 F.2d 816 (1st Cir. 1991)22

Mozee v. American Commercial Marine Service Co., 940 
F.2d 1036 (7th Cir. 1 9 9 2 )...............................  14, 16

Parton v. GTE North, Inc., 971 F.2d 150 (8th Cir. 1992) 14

Patterson v. McLean Credit Union
(4th Cir. No. 92-1376) .....................    15

Rowe v. Sullivan, 967 F.2d 186 (5th Cir. 1992) ............  15

Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) . . .  22

Sinnovich v. Port Authority of Allegheny County (3rd Cir. 
No. 92-3125)............................................................  15

Pages:

Texas Department of Community Affairs v. Burdine, 450 
U.S. 248 (1 9 8 1 ).......................................................  23



vn

United States Postal Service Board of Governors v.
Aikens, 460 F.2d 711 (1983).................................. 23

Valdez v. San Antonio Chamber of Commerce, ___F.2d
___, 1992 WL 23616 (5th Cir. Sept. 25, 1992) . . 15

Village of Arlington Heights v. Metropolitan Housing
Corp., 429 U.S. 252 (1977).............................  23

Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992),
cert, denied on other grounds,___U .S .___ , 61 U.S.
L. W. 3257 (Oct. 5, 1992)...................... 7, 14, 16, 17

Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1 9 8 9 ).............................' ..........passim

Wilson v. Belmont Homes, Inc., 970 F.2d 53 (5th Cir.
1992)..........................................................................  15

Statutes: Pages:

28 U.S.C. § 1254(1) .................................................................2

42 U.S.C. § 1981 ................................................................... 24

Civil Rights Act of 1991, 105 Stat. 1071,
P.L. 102-166 ...................................................passim

Sec. 2, Civil Rights Act of 1991..............................................2

Sec. 3, Civil Rights Act of 1991............................................. 2

Sec. 102, Civil Rights Act of 1 9 9 1 ............................. 16, 21

Sec. 104, Civil Rights Act of 1 9 9 1 .......................................... 2

Pages:



Vlll

Pages:

Sec. 105, Civil Rights Act of 1 9 9 1 .......................................3

Sec. 109, Civil Rights Act of 1 9 9 1 .......................................4

Sec. 402, Civil Rights Act of 1 9 9 1 ............ 4, 13, 14, 16, 20

Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. § 2000e, etseq. ...................  5, 15, 16, 21-23

Other Authorities: Pages:

C. G. Endlich, Commentary on the Interpretation o f
Statutes, 412 (1888) ................................................ 20

Lanctot, The Defendant Lies and the Plaintiff Loses: The 
Fallacy o f the "Pretext-Plus" Rule in Employment 
Discrimination Cases, 43 Hastings L. J. 57 (1991) 23

Moore, Hard Labor: Voices o f Women from the 
Appalachian Coal Fields, 2 Yale J. Law &
Feminism 199 (1 9 9 0 ).............................................. 10

Uniform Guidelines on Employee Selection Procedures,
29 C.F.R. § 1607.1, et seq...........................................6



IX

APPENDIX

Decision of the Court of Appeals for the Fifth Circuit

Pages:

August 27, 1992 ...............................  la

Memorandum Opinion and Order of United States 
District Court for the Western District of 
Kentucky, August 27, 1990 ................................. 13a

Memorandum Opinion of District Court, August 27, 199(5a

Order of District Court, August 27, 1990 ...................... 21a

Memorandum Opinion of District Court, September 30,
1991 ........................................................................  22a

Order of District Court, September 30, 1991 ............... 33a

Order of Court of Appeals Denying Rehearing, October
14, 1992 ................................................................. 34a



No. 92-

In The

Supreme Court of tfje Hmteb States?
October Term, 1992

Thresa Kuhn,
Petitioner,

v.

Island Creek Coal Company

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT

Petitioner Thresa Kuhn respectfully prays that a writ 
of certiorari issue to review the judgment and opinion of the 
Court of Appeals for the Sixth Circuit entered in this 
proceeding on August 27,1992, petition for rehearing denied 
on October 14, 1992.

O p in io n s  B e l o w

The opinion of the Sixth Circuit is unreported and is 
set out at pp. la-12a of the appendix hereto ("App."). The 
order of the Court of Appeals denying petitioner’s timely 
petition for rehearing and for rehearing in banc is 
unreported and is set out at p. 34a of the appendix. The 
opinions and orders of the United States District Court for 
the Western District of Kentucky are unreported and are set



2

out at pp. 13a-33a of the appendix.

Ju r is d ic t io n

The decision of the Sixth Circuit was entered on 
August 27, 1992. Petitioner’s timely petition for rehearing 
in banc was denied on October 14, 1992. Jurisdiction of the 
Court is invoked under 28 U.S.C. § 1254(1).

St a t u t e  In v o l v e d

This case involves sections 2, 3, 104, 105, 109(c), 
402(a), and 402(b) of the Civil Rights Act of 1991,105 Stat. 
1071, P.L. 102-166, which provide in pertinent part:

Sec. 2. Findings.

The Congress finds that— . . .

(2) the decision of the Supreme Court in Wards 
Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) has 
weakened the scope and effectiveness of Federal civil 
rights protections; . . . .

Sec. 3 Purposes.

The purposes of this Act are— . . .

(2) to codify the concepts of "business 
necessity" and "job related" enunciated by the 
Supreme Court in Griggs v. Duke Power Co., 401 
U.S. 424 (1971), and in the other Supreme Court 
decisions prior to Wards Cove Packing Co. v. Atonio, 
490 U.S. 642 (1989);___

Sec. 104. Definitions.

Section 701 of the Civil Rights Act of 1964 (42 
U.S.C. 2000e) is amended by adding at the end the following 
new subsections:



3

" . . .  (m) The term ‘demonstrates’ means meets the 
burdens of production and persuasion. . . ."

Sec. 105. Burden of Proof in Disparate Impact Cases.
(a) Section 703 of the Civil Rights Act of 1964 (42 

U.S.C. 2000e-2) is amended by adding at the end the 
following new subsection:

"(k)(l)(A) An unlawful employment practice based 
on disparate impact is established under this title only if—

"(i) a complaining party demonstrates that a 
respondent uses a particular employment practice 
that causes a disparate impact on the basis of race, 
color, religion, sex, or national origin and the 
respondent fails to demonstrate that the challenged 
practice is job related for the position in question 
and consistent with business necessity; or

"(ii) the complaining party makes the 
demonstration described in subparagraph (C) with 
respect to an alternative employment practice and 
the respondent refuses to adopt such alternative 
employment practice.

"(B)(i) With respect to demonstrating that a 
particular employment practice causes a disparate impact as 
described in subparagraph (A)(i), the complaining party shall 
demonstrate that each particular challenged employment 
practice causes a disparate impact, except that if the 
complaining party can demonstrate to the court that the 
elements of a respondent’s decisionmaking process are not 
capable of separation for analysis, the decisionmaking 
process may be analyzed as one employment practice.

"(ii) If the respondent demonstrates that a specific 
employment practice does not cause the disparate impact, 
the respondent shall not be required to demonstrate that 
such practice is required by business necessity.



4

"(C) The demonstration referred to by subparagraph 
(A)(ii) shall be in accordance with the law as it existed on 
June 4, 1989, with respect to the concept of ‘alternative 
employment practice’.

"(2) A demonstration that an employment practice is 
required by business necessity may not be used as a defense 
against a claim of intentional discrimination under this title.

tt

(b) No statements other than the interpretive 
memorandum appearing at Vol. 137 Congressional Record 
S 15276 (daily ed. Oct. 25, 1991) shall be considered 
legislative history of, or relied upon in any way as legislative 
history in construing or applying, any provision of this Act 
that relates to Wards Cove—Business necessity/ 
cumulation/altemative business practice.

Sec. 109. Protection of Extraterritorial 
Employment.

(c) Application of Amendments.— The 
amendments made by this section shall not apply with 
respect to conduct occurring before the date of the 
enactment of this Act.

Sec. 402. Effective Date.

(a) In General.—Except as otherwise specifically 
provided, this Act and the amendments made by this Act 
shall take effect upon enactment.

(b) Certain Disparate Impact Cases.— 
Notwithstanding any other provision of this Act, nothing in 
this Act shall apply to any disparate impact case for which 
a complaint was filed before March 1, 1975, and for which 
an initial decision was rendered after October 30, 1983.



5

St a t e m e n t  o f  t h e  C a s e

A. The Proceedings Below

This action began on September 20, 1988, when 
petitioner Thresa Kuhn, plaintiff below, filed an action 
under Title VII of the Civil Rights Act of 1964, as amended, 
42 U.S.C. § 2000e, et seq., against the Island Creek Coal 
Company ("Island Creek") in Kentucky. See the complaint, 
reproduced in the Joint Appendix (hereinafter "J.A.") filed 
in the court below, at pp. 6-9. The complaint claimed that 
the refusal to hire her for the positions of Safety Inspector, 
Rodman, Standards Control Inspector, and Mine Inspector 
was the result of discrimination because of plaintiffs sex. In 
its answer the employer Island Creek denied the allegations 
and contended that its denials of employment to Ms. Kuhn 
were based on legitimate business reasons. J.A. 37-41.

Petitioner moved for summary judgment in her favor 
as to the position of Mine Inspector. She urged that the 
total exclusion of women from the position and a sudden 
change of the requirements for the positions evidenced 
Island Creek’s discriminatory hiring practices. This motion 
was denied by the District Court. App. pp. 13a-15a.

Island Creek, in turn, moved for summary judgment 
with regard to all of Ms. Kuhn’s claims on the basis that 
there were no issues of material fact. Both motions were 
granted by the District Court and the action was dismissed 
in its entirety. App. pp. 16a-21a; 22a-33a.

1. The Disparate Impact Claims.

Island Creek argued that Ms. Kuhn had failed to 
establish a prima facie case of disparate impact with regard 
to the Mine Inspector position in that she had failed to 
introduce relevant statistics as mandated by the recently



6

decided Wards Cove Packing Co. v. Atonio, 490 U.S. 642 
(1989). Further, assuming a prima facie case had been 
made, Island Creek had met its burden under Wards Cove of 
producing evidence of business necessity.

Ms. Kuhn opposed the motion for summary judgment 
on a variety of grounds, including the adverse impact of a 
ten-year experience requirement on women because of their 
recent entry into the work force of the coal mining industry, 
statistical evidence that there had never been women in 
underground supervisory positions, the failure of Island 
Creek to comply with the Uniform Guidelines on Employee 
Selection Procedures, 29 C.F.R. § 1607.1, et seq., and 
testimony by plaintiffs expert witness that the requirements 
for the Mine Inspector position should not be based solely 
on the length of coal mine experience.

The District Court granted the motion for summary 
judgment, relying on Wards Cove. App. pp. 26a-28a. It held 
that there had been an insufficient demonstration of 
disparate impact under the standard of that case. It also 
held, under Wards Cove, that defendant had met its standard 
of coming forward with evidence of business necessity (App. 
pp. 29a-31a), and that the alternative selection procedure 
suggested by Ms. Kuhn would not be equally effective. App. 
pp. 31a-32a.

The District Court also granted summary judgment 
with regard to claims of disparate impact with regard to the 
other three positions at issue, again relying on the decision 
in Wards Cove. It held that the showing that Ms. Kuhn was 
denied the positions because she did not have as much 
experience as the other applicants, together with a showing 
that generally women were newcomers in the mining 
industry and therefore did not have as much experience as 
men, was insufficient under Wards Cove. App. p. 20a.



7

2. The Disparate Treatment Claims.

Island Creek argued that Ms. Kuhn had failed to 
establish a prima facie case of disparate treatment with 
regard to the Safety Inspector, Rodman, and Standards 
Control Inspector positions, since she had not shown that 
she was as qualified as the men whom Island Creek had 
hired. Assuming a prima facie case of disparate treatment 
had been established, Island Creek claimed legitimate, 
nondiscriminatory reasons for its actions.

Ms. Kuhn again opposed Island Creek’s motion for 
summary judgment on the ground that there were material 
issues of fact with regard to her qualifications for each of 
the three positions because of her resume and other 
testimony that supported the conclusion that she was more 
qualified than the men that were selected.

The District Court granted summary judgment on the 
ground that Island Creek had advanced the reason that it 
hired persons who were more qualified because of their 
greater experience or otherwise had superior credentials. 
App. pp. 18a-19a. Moreover, Ms. Kuhn had not shown that 
Island Creek’s proffered reasons were pretextual or that the 
minimum experience requirements had a discriminatory 
impact on women. App. pp. 19a-20a.

3. The Decision o f the Court o f Appeals.

In the Court of Appeals, the issue was whether, as a 
matter of law, it was proper to have granted summary 
judgment in favor of the defendant employer. App. p. 4a. 
With regard to her disparate impact claims, petitioner urged 
that the legal standard to be applied was that established by 
the Civil Rights Act of 1991. App. p. 9a. The Court of 
Appeals held that it was bound by the prior decision in Vogel 
v. City o f Cincinnati, 959 F.2d 594 (6th Cir. 1992), cert, 
denied on other grounds, ___U .S .___ , 61 U.S. L. W. 3257



8

(Oct. 5, 1992), that the Act was not to be applied 
"retroactively." Therefore, the disparate impact claims were 
decided based on Wards Cove. App. pp. 9a-10a. Applying 
the standards of Wards Cove with regard to establishing a 
prima facie case of disparate impact (App. p. 10a), the 
employer’s burden to come forward with evidence that its 
hiring process "serves, in a significant way, the legitimate 
employment goals of the employer" (App. pp. lOa-lla), and 
the burden on the plaintiff to demonstrate an equally 
effective alternative (App. pp. lla-12a), the Court below 
affirmed the granting of summary judgment.

With regard to petitioner’s disparate treatment 
claims, the Court held that Ms. Kuhn had not made out a 
prima facie case of disparate treatment as to two of the 
positions. With regard to the rod person position she had 
not established that she met the minimum qualification of 
two years’ experience. With regard to the safety inspector 
position, it had been filled through the demotion of the prior 
position holder back into it and therefore none of the 
applicants were selected. App. p. 6a.

The Court did hold that petitioner had established a 
prima facie case with regard to the standards control 
inspector position. App. p. 6a. However, the Court of 
Appeals also held that summary judgment was appropriate 
with regard to all three positions because Island Creek had 
articulated legitimate, nondiscriminatory reasons for the 
employment actions and Ms. Kuhn had not shown that they 
were pretextual. App. p. 7a-8a.



9

B. Statement o f Facts

1. The Disparate Impact Claims.

Island Creek required that a person must have ten 
years of experience doing underground work in the mines to 
qualify for the position of Mine Inspector. Ms. Kuhn 
claimed that this requirement had an adverse impact on 
women.

The evidence before the District Court when it 
granted summary judgment, regarded in petitioner’s favor as 
it must be, demonstrated that women had been hired into 
the mining industry in underground jobs only in recent years 
and that, therefore, very few if any women could meet the 
ten-years’ experience requirement for Mine Inspector as 
compared to men. Thus, Dr. Joel Dill, a vocational expert, 
testified that "since women have not been employed in the 
coal mining industry as long as men, it would be difficult for 
women to successfully compete for positions requiring many 
years of practical experience." App. p. 19a, citing Dill 
Deposition at p. 29.1 The deposition testimony of one of 
Island Creek’s own witnesses, Darold Gamblin, confirmed 
the disparate impact that a ten-year experience requirement 
would have on women applicants.2

lDr. Dill testified:
I think they’re discriminatory because . . .  for a woman in the 
mines or for a woman to have ten years’ experience would 
have been extremely difficult to next to impossible because 
the influx of women in the mines would have been mostly, 
except for a few, after that time period.

J.A. p. 185. He went on to testify that there were only a few women 
in the mines until after 1977. Id. Ms. Kuhn applied for the job as 
Mine Inspector in 1987.

2Mr. Gamblin testified:
Q. You have worked in coal mining for thirty-five years?
A. Yes, sir.

(continued...)



10

Statistical evidence before the Court demonstrated 
that as of 1984, only 14 out of 352 workers in Island Creek’s 
underground work force, or 3.97%, were women. By 1988 
the number was only 31 out of 866, or 3.58%, and the 
highest proportion during this period was 5.06%, or 37 out 
of 731 in 1986. J.A. 236-38; 3063 During this entire period, 
there were 0 women in underground supervisory or official 
positions at Island Creek. J.A. 306.

Ms. Kuhn herself had mining experience beginning in 
1980. This included work as an underground laborer, as a 
training coordinator, and as a co-op engineering technician 
with the federal Mine Safety and Health Administration. In 2

2(...continued)
Q. How many men do you know who have ten years 
underground experience?
A. There’s a lot of them.
Q. How many women do you know who have ten years 
underground experience?
A. Probably three.
Q. . . .  [C] an you be more specific on the number of men 
that you know with ten years underground experience?
A. Gosh, I have worked a lot of places. I would probably 
say a hundred.

Deposition of Darold Gamblin, p. 33; J.A. p. 151.

Petitioner had sought through Interrogatories to obtain from 
Island Creek the number of women it employed at its West Kentucky 
Division in the years 1975-1988. Island Creek objected to the 
discovery on the ground it was immaterial and provided information 
only for the years 1984-88. J.A. 234-38. There is nothing in the 
record showing that the percentage of women employees ever rose 
above 5.06% during the period from 1975-88.

The coal industry as a whole had refused to hire any women 
for underground mining positions until late 1973, when the steel 
industry entered into a consent decree that required the hiring of 
women in the coal mines owned for steel production. Moore, Hard 
Labor: Voices of Women from the Appalachian Coal Fields, 2 Yale J. 
Law & Feminism 199 (1990).



11

addition, she held an Illinois Mine Examiner’s Certificate, as 
well as other certificates qualifying her to hold mine safety 
positions. Record Entry No. 60, Ex. B; Record Entry No. 
26, pp. 24, 28, 60, 74-77, 148-157. Thus, the record indicates 
that except for the ten-year underground experience 
requirement, she would have been considered for the 
position of Mine Inspector when she applied in 1987.

Before the creation of the Mine Inspector position, 
there had been a three-year experience requirement for 
similar safety positions. Ms. Kuhn would have met this 
requirement. Moreover, since Kentucky had recipricocity 
with Illinois, Ms. Kuhn was qualified under Kentucky law for 
initial appointment to a mine safety position because of her 
Illinois Mine Examiner’s Certificate. Record Item 60, Ex. B. 
Finally, after a male was hired for the Mine Inspector 
position, Island Creek removed the ten-year experience 
requirement. Record Item 81, p. 15.

2. The Disparate Treatment Claims.

Again, since the District Court granted Island Creek’s 
motion for summary judgment, the facts in the record must 
be viewed in the light most favorable to petitioner. In the 
courts below, petitioner pointed to evidence in the record 
that would, if accepted, establish that the employer’s 
articulated justifications for its employment decisions were 
untrue.

With regard to the position of Standards Control 
Inspector, Island Creek claimed that the male selectee’s 
eight years of experience with underground equipment made 
him more qualified that Ms. Kuhn. However, there is 
evidence in the record that, in fact, no experience on 
underground mining equipment was required to perform the 
job effectively. Thus, Robert Phelps, who had worked as a 
Standard Controls Inspector at Island Creek for ten years 
had no prior mining experience before obtaining the job.



12

His only prior job was as a dental technician assistant. 
(Application of Robert Phelps, J.A. pp. 261-62.) Phelps’ 
application did not indicate that he was required to operate 
underground mining machinery or that he had any 
experience in operating it. Id.

With regard to the Safety Inspector position, the 
courts below ruled against petitioner on the ground that the 
position had been filled by placing the prior incumbent, 
Darold Gamblin, back into the position. Again, evidence in 
the record indicates that this was not true. Deposition 
testimony showed that Island Creek’s own witnesses could 
not agree who was placed into the vacant position and, in 
fact, Mr. Gamblin himself stated that another male, Bobby 
Gibson, was placed in the position without any of the 
applicants, including Ms. Kuhn, being interviewed. 
(Deposition of Darold Gamblin, pp. 27-29; J.A. pp. 146-47.) 
When asked why none of the applicants were interviewed for 
the position, Mr. Gamblin answered, "I always wondered 
myself." Id.



13

R e a s o n s  f o r  G r a n t in g  t h e  W r i t

i .

The Courts of Appeals Are in Conflict Over 
Whether and to What Extent the Civil Rights 

Act of 1991 Should Apply to Cases Pending on Its 
Effective Date, a  Question of Great National 

Importance

A. Introduction.

The question of whether and to what extent the Civil 
Rights Act of 1991 applies to cases pending on November 
21, 1991, the date it was signed into law, has engendered 
much litigation and controversy.4 The courts of appeals 
have given a variety of answers to this important question, 
and disputes between the circuits are many and complex.

B. The Dispute Over the Language o f the Statute.

The Ninth Circuit has held that the plain language of 
the statue dictates application of the Act, with the exception 
of two specifically designated provisions, to pending cases. 
Davis v. City and County o f San Francisco, 1992 WL 251513 
(9th Cir. Oct. 6, 1992).5 Thus, section 402(a) provides that: 
"Except as otherwise specifically provided, this Act and the 
amendments made by this Act shall take effect upon

4To date, there have been nearly 200 district court opinions 
dealing with the issue.

3A  petition for rehearing has been filed in Davis on an unrelated 
question, the proper application of this Court’s decision in City of
Burlington v. Dague, 505 U.S. ___, 120 L.Ed.2d 449 (1992) to the
calculation of attorneys’ fees.



14

enactment." (Emphasis added.) Two other provisions so 
"otherwise specifically provide;" section 109 states that its 
amendments shall not apply "to conduct occurring before the 
date of the enactment of this Act," and section 402(b) 
provides that "notwithstanding any other provision of This 
Act" it shall not apply to certain disparate impact cases. The 
Ninth Circuit reasoned that sections 109 and 402(b) would 
be meaningless if the Act as a whole did not apply to 
pending cases.

The Sixth Circuit, in Vogel v. City o f Cincinnati, 959 
F.2d 594, 597-98 (6th Cir. 1992), cert, denied on other 
grounds, 61 U.S. L. Week 3257 (Oct. 5, 1992), held that the 
language of the Act was not clear that it was intended to 
apply to pending cases. Therefore, the court concluded that 
the Act did not so apply; the court below followed Vogel in 
the present case.6 Similarly, the Fifth, Seventh, Eighth, and 
District of Columbia Circuits relied on legislative history to 
hold that the language of the statute could not be relied 
upon to establish an intent to have the Act apply to pending 
cases. Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir. 
1992); Mozee v. American Commercial Marine Service Co., 
940 F.2d 1036 (7th Cir. 1992), cert, denied, 61 U.S.L. W. 
3261, (October 5, 1992); Fray v, Omaha World Herald Co., 
960 F.2d 1370 (8th Cir. 1992);7 Gersman v. Group Health 
Association, In c .,___F .2 d___ , 1992 WL 220163 (D.C. Cir.

6See also, Harvis v. Roadway Express, Inc., 1992 Lexis 19436 (6th 
Cir. Aug. 24, 1992); Holt v. Michigan Dept, of Corrections, 1992 Lexis 
21161 (6th Cir. Sept. 11, 1992).

7See also, Parton v. GTE North, Inc., 971 F.2d 150 (8th Cir. 1992). 
However, that Court has also heard argument in banc on the issue in 
Hicks v. Brown Group, Inc., 946 F.2d 1344 (8th Cir. 1991), vacated
and remanded, 503 U .S .___, 117 L.Ed.2d 485 (1992)(argued in banc
on July 21, 1992)).



15

September 15, 1992).8

C. The Dispute Over Substantive and Procedural Changes.

The Fifth and the District of Columbia Circuits, have 
explicitly recognized a distinction between those provisions 
of the Act that changed the substantive employment 
discrimination law, and those provisions that changed 
procedures. Those circuits have held that substantive
changes would not be applied retroactively but that 
procedural changes would be.9 * Oil However, under the
circumstances of the cases before them, each found that the 
provisions of the Act at issue should not be applied. 
Landgrafv. USI Film Products, 968 F.2d 427 (5th Cir. 1992); 
Wilson v. Belmont Homes, Inc., 970 F.2d 53 (5th Cir. 1992); 
Valdez v. San Antonio Chamber o f Commerce,___F .2d___ ,

8The issue of the applicability of the Act to pending cases is 
awaiting decision in a number of other circuits, including the Second 
(Butts v. City of New York (2d Cir. No. 92-7850)); the Third Sinnovich 
v. Port Authority of Allegheny County (3rd Cir. No. 92-3125)); and the 
Fourth (Patterson v. McLean Credit Union (4th Cir. No. 92-1376)).

9But see, Rowe v. Sullivan, 967 F.2d 186 (5th Cir. 1992), in which
an intervening panel of the Fifth Circuit seems to take the broader 
position that none of the provisions of the 1991 Act that are 
amendments to Title VII apply to pending cases. The panel relies on 
a policy guidance issued by the Equal Employment Opportunity 
Commission, "Policy Guidance on Application of Damages Provisions 
of the Civil Rights Act of 1991 to Pending Charges and Pre-Act 
Conduct," (Dec. 21, 1991), also relied upon by the Eighth Circuit in 
Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992). The 
Ninth Circuit in Davis squarely rejected reliance on the EEOC policy 
guidance, citing this Court’s decision in EEOC v. Arabian American
Oil C o .,___U .S .___ , 111 S.Ct. 1227, 1235 (1991).



16

1992 WL 23616 (5th Cir. Sept. 25, 1992);10 Gersman v. 
Group Health Association, Inc., supra. The Eleventh Circuit 
has recently adopted the same position. Baynes v. A T & T .
Technologies, In c .,___F .2d___ , 1992 WL 296716 (11th Cir.
Oct. 20, 1992).11

The Seventh Circuit first seemed to recognize a 
distinction between claims that related to changes in 
substantive law by the Act and claims that related to changes 
in procedures (Mozee v. American Commercial Marine Service 
Co., supra), but later held that none of the provisions of the 
Act should be applied to pending cases. Luddington v.
Indiana Bell Tel. Co., 966 F.2d 225, reh’g. denied, ___ F.2d

(7th Cir. 1992). The Sixth Circuit in Vogel and 
subsequent decisions has also declined to apply any of the 
Act’s provisions to pending cases.

Thus, there is currently a three-way split between the 
circuits, with the Ninth Circuit holding that all provisions, 
with two specific exceptions, apply to pending cases, the 
Sixth, Seventh, and Eighth Circuits holding that none of 
them do, and the Fifth, Eleventh, and District of Columbia 
Circuits distinguishing between those sections that modify 
substantive rights, which do not apply "retroactively," and 
those sections that modify procedures and remedies, that do 
apply to pending cases. 10 *

10In these cases, the Fifth Circuit held that section 102 of the Act, 
which provide for damages and jury trials in actions brought under 
Title VII, would apply to cases pending at the time of the enactment 
of the Act. However, it declined to require the retrial before a jury 
of cases that had received a bench trial before the Civil Rights Act 
of 1991 was passed. See Landgraf v. USI Film Products, 968 F.2d at 
432-33.

uThe Eleventh Circuit neither discussed nor decided the question 
of the language of the Act, aside from a brief reference to section 
402(a) in a footnote.



17

D. The Dispute Over This Court’s Decisions in Bradley,
Bennett, Bowen, and Bonjomo.

The conflict between the circuits over the issue of the 
applicability of the Civil Rights Act of 1991 to pending cases 
stems in large measure from a dispute over the proper 
interpretation of a series of decisions of this Court that deal 
with the issues of "retroactivity" and the applicability of a 
new statute or other change in the law to cases pending at 
the time of the change. From Bradley v. Richmond School 
Board, 416 U.S. 696 (1974); through Bennett v. New Jersey, 
470 U.S. 632 (1985) and Bowen v. Georgetown University 
Hospital, 488 U.S. 204 (1988); and ending with Kaiser 
Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827, 837 
(1990), which commented on the "apparent tension" between 
Bradley and Bowen, this Court has announced a variety of 
rules relating to these issues.

The courts of appeals have variously held that these 
decisions are in conflict and have not yet been reconciled by 
this Court;12 that they are distinguishable based on the 
substantive change/procedural change dichotomy;13 and that 
they are irreconcilably in conflict.14 The decisions of the 
circuits on the issue of the Civil Rights Act of 1991 have 
similarly ranged from holding it fully applicable to pending 
cases,15 holding that only the procedural and remedial

12Fifth Circuit (Johnson v. Uncle Ben’s Inc., supra)] Sixth Circuit 
(Vogel v. City of Cincinnati, supra): and Ninth Circuit (Davis v. City 
and County of San Francisco, supra).

“District of Columbia Circuit (Gersman v. Group Health 
Association, Inc., supra).

14Seventh Circuit (Luddington v. Indiana Bell Tel. Co., supra).

“Ninth Circuit, see supra, n. 12 and text at pp. 13-14.



18

provisions are applicable,16 and holding that it is not 
applicable (or "retroactive") at all.17

The question of what is the governing rule for the 
federal courts to decide whether a newly enacted statute is 
or is not to be applied to pending cases is, of course, 
recurrent and important. Certiorari should be granted to 
resolve the current confusion and uncertainty among the 
lower federal courts.

E. The Issue is o f Great National Importance.

That the issue raised by this and similar cases is of 
paramount national importance can not be denied. Whether 
the Civil Rights Act of 1991, which Congress enacted largely 
in response to a series of decisions by this Court, applies to 
pending cases will determine what law will govern 
employment discrimination cases for many years. In effect, 
under the decision of the court below, there will be a two- 
track system of fair employment law for decades to come 
depending on when a case has been filed or when the 
complained-of conduct occurred.

The current uncertainty among litigants and the 
lower courts serves no useful purpose. It can only result in 
delay and confusion in the enforcement of the law, with a 
diversion of judicial resources from the vigorous and 
effective enforcement of the anti-discrimination laws.

16Fifth, Eleventh, and District of Columbia Circuits, see supra, n. 
13, and text at pp. 15-16.

17Sixth and Seventh Circuits, see supra, no. 14 and text, pp. 14,
16.



19

F. Certiorari Should Be Granted in the Present Case.

The present case presents an ideal opportunity to 
resolve the conflict. At issue is the applicability of section 
105 of the Act, which Congress clearly intended to overrule 
this Court’s decision in Wards Cove Packing Co. v. Atonio, 
490 U.S. 164 (1989). The conduct complained of in this case 
occurred in 1987, prior to the decision in Wards Cove\ 
section 3(2) of the Act states that one of its purposes is to 
"codify the concepts of ‘business necessity’ and ‘job related’ 
enunciated by the Supreme Court in Griggs v. Duke Power 
Co., 401 U.S. 424 (1971), and in the other Supreme Court 
decisions prior to Wards Cove . . . ." (Emphasis added.)18 
Nevertheless, the lower court explicitly applied the standard 
of Wards Cove in determining whether petitioner had 
demonstrated disparate impact,19 whether the respondent

18The language of the statute raises the related question of 
whether this Court’s decision in Wards Cove, as well as the other 
decisions overturned by the Civil Rights Act, should continue to be 
applied retroactively to cases, like the present one, that arose prior 
to the dates of those decisions. This question involves the interplay 
between Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), American 
Trucking Assns. v. Smith, 496 U.S. 167 (1990), and James Beam
Distilling Co. v. Georgia, 501 U.S.___, 115 L.Ed.2d 481 (1991) as they
relate to decisions that have been overturned by a subsequent statute.

19It is problematic that the Court of Appeals was correct in 
applying the Wards Cove standard for proving disparate impact in any 
event. The Court held that petitioner "did not show a disparity 
between the percentage of qualified female applicants and the 
percentage of females holding the at issue jobs” as required by Wards 
Cove. App. p. 10a. (Emphasis added.) See also App. p. 11a, n. 14.

However, petitioner had relied on Dothard v. Rawlinson, 433 
U.S. 321 (1977) and had demonstrated that the ten-year experience 
requirement necessarily had a disparate impact on women because 
there were virtually no women who could meet such a requirement 
because of their total exclusion from underground mining jobs before 
1974. As Dothard held:

(continued...)



20

had born its burden of production o f evidence of job 
relatedness, and whether petitioner had met her burden of 
demonstrating an alternative practice. App. pp. 9a-12a.

The Ninth Circuit in Davis, in holding that the plain 
language of the Act required that it be applied to pending 
cases, noted the language of section 402(b), which exempted 
the Wards Cove case itself from the provisions of the Act. 
Because of the specific exemption, the Ninth Circuit 
reasoned, Congress must have been of the view that the 
general provision in section 402(a) that the Act "shall take 
effect upon enactment" would otherwise have resulted in the 
Wards Cove case being governed by the new section 105. It 
necessarily follows that all disparate impact cases other than 
Wards Cove, including the present one, are governed by the 
1991 Act.

The Sixth Circuit, however, came to the opposite 
conclusion, and its decision is in agreement with that of the 
Seventh Circuit. Since, on the other hand, questions of 
burdens of proof are procedural in nature,20 the Fifth, 
Eleventh and District of Columbia Circuits would apparently

‘’(...continued)
There is no requirement, however, that a statistical showing 
of disproportionate impact must always be based on analysis 
of the characteristics of actual applicants. See Griggs v. 
Duke Power Co supra, at 430. The application process itself 
might not adequately reflect the actual potential applicant 
pool, since otherwise qualified people might be discouraged 
from applying because of a self-recognized inability to meet 
the very standards challenged as being discriminatory.

433 U.S. at 330. Just as in Dothard, women applicants would realize 
that it would be futile to apply for the Mine Inspector position since 
they lacked ten years of experience in underground work.

20 See French v. Grave Mfg. Co., 656 F.2d 295 (8th Cir. 1981); 
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167 (5th 
Cir.), reh’g denied, 920 F.2d 259 (5th Cir. 1990); C. G. Endlich, 
Commentary on the Interpretation of Statutes, 412 (1888).



21

hold that the provisions of section 105 that now govern 
burdens of proof in disparate impact cases should be applied 
to pending cases.21

The conflict between the circuits is real and complex; 
the issues presented by this conflict are of the utmost 
importance. Therefore, certiorari should be granted by this 
Court. On October 28,1992, a petition for writ of certiorari 
was filed in Landgraf v. USIFilm Products, supra. Petitioner 
is of the view that certiorari should be granted in both 
Landgraf and the present case because they involve different 
provisions of the Civil Rights Act of 1991 and they are in 
different procedural postures. Landgraf involves section 102 
of the Act, which provides for the first time damages and a 
jury trial in actions for sex discrimination brought under 
Title VII. The present case, on the other hand, involves 
section 105, which amends Title VII to overrule this Court’s 
decision in Wards Cove Packing Co. v. Atonio, supra. The 
two cases together will permit the Court to resolve most 
questions concerning the applicability of the Civil Rights Act 
in the various contexts in which that issue may arise.

21The concerns that led the Fifth Circuit to hold that to require 
a new trial before a jury would be "manifestly unjust" in a case tried 
before the effective date of the Act, are not present here. There was 
no trial in this case. Island Creek moved for summary judgment, and 
in both the District Court and the Court of Appeals the question was 
the legal standard that should govern in deciding that motion. At the 
time of the Court of Appeals’ decision, the appropriate legal standard 
was that of the Civil Rights Act of 1991. Reversing the decisions of 
the courts below would simply result in a determination of 
petitioner’s claims under the proper legal standard, not the redoing 
of a trial already held and concluded.



22

II.

Certiorari Should be Granted to Resolve the 
Conflict Among the Circuits as to the Burden of 

Proof on a Plaintiff in a Title VII Action in 
Overcoming a Rebuttal of a Prima Facie Case of 

Disparate Treatment.

The Court of Appeals held that petitioner had not 
met her burden of establishing that the reasons proffered by 
Island Creek were pretexts for unlawful discrimination. 
However, Ms. Kuhn pointed to evidence in the record which 
if accepted, as it had to be in deciding the motion for 
summary judgment, showed that the reasons given for two 
of the positions at issue, Standards Control Inspector and 
Safety Inspector, were in fact untrue. See the Statement of 
Facts, supra, pp. 11-12.

Evidently, therefore, the Sixth Circuit based its 
holding on the rule it adopted in Galbraith v. Northern 
Telecom, 944 F.2d 275, 282-83 (6th Cir. 1991), that proof 
that an employer’s explanation for the challenged 
employment action was not true and thus a pretext for the 
true reason, was insufficient to prove intentional 
discrimination. This so-called "pretext plus" rule has also 
been adopted by the First Circuit. See Mesnick v. General 
Electric, 950 F.2d 816, 824 (1st Cir. 1991) In Mesnick the 
First Circuit held that the crucial issue is the actual state of 
mind of the decision maker, i.e., whether the employer 
believed its stated reason was credible. Thus, plaintiff must 
not only show that defendant’s reason is a sham, but that it 
is a sham to cover discrimination. See also, Shager v. Upjohn 
Co., 913 F.2d 398, 401 (7th Cir. 1990).

The Eighth Circuit, on the other hand, has squarely 
rejected the "pretext plus" rule. In MacDissi v. Valmont 
Industries, 856 F.2d 1054, 1059 (8th Cir. 1988) the Court 
held that once the fact finder was persuaded that the



23

proffered reason for the challenged action was not the true 
reason, then pretext is established under this Court’s 
decisions in Texas Department o f Community Affairs v. 
Burdine, 450 U.S. 248 (1981) and United States Postal Service 
Board o f Governors v. Aikens, 460 F.2d 711 (1983).22

Both Burdine (450 U.S. at 256) and Aikens (460 U.S. 
at 716) hold that pretext can be established "either directly by 
persuading the court that a discriminatory reason more likely 
motivated the employer or indirectly by showing that the 
employer’s proffered reason is unworthy of credence." 
(Emphasis added.) Thus, the Eighth Circuit held, once the 
reason given has been shown to be false, the plaintiff need 
not also prove intentional discrimination by direct evidence. 
Such an approach "unjustifiably multiplies the plaintiffs 
burden." 856 F.2d at 1059. See also, Bruno v. W.B. Saunders 
Co., 882 F.2d 760, 766 (8th Cir. 1989), cert, denied sub nom., 
CBS, Inc. v. Bruno, 493 U.S. 1062 (1990)(it is sufficient 
under Burdine and Aikens to simply disprove the employer’s 
reason).

The conflict between the Eighth Circuit on the one 
hand and the Sixth, First and Seventh Circuits on the other, 
goes to the heart of the enforcement of employment 
discrimination law. This Court has held repeatedly, in a 
variety of contexts, that intentional discrimination can be 
proven through circumstantial evidence; proof of the actual 
state of mind of the alleged discriminator is not necessary. 
See, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); 
Texas Dept, o f Community Affairs v. Burdine, supra; United 
States Postal Service Board o f Governors v. Aikens, supra 
(disparate treatment under Title VII); Village o f Arlington 
Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266-68

22See Lanctot, The Defendant Lies and the Plaintiff Loses: The 
Fallacy o f the "Pretext-Plus" Rule in Employment Discrimination Cases, 
43 Hastings L. J. 57 (1991), for a comprehensive discussion of the 
pretext plus rule and the conflict between the circuits.



24

(1977)(intentional discrimination under the fourteenth 
amendment); Batson v. Kentucky, 476 U.S. 79, 90-98
(1986) (intentional discrimination in the selection of juries). 
See also, Goodman v. Lukens Steel Co., 482 U.S. 656, 667-69
(1987) (demonstration of racial animus is not required for a 
finding of intentional discrimination in violation of 42 U.S.C. 
§ 1981).

The "pretext plus" rule of the Sixth and First Circuits 
is inconsistent not only with the decisions of the Eighth but 
with longstanding precedents established by this Court. 
Certiorari should be granted to resolve the conflict and to 
ensure the continued vitality of the prohibition against 
discrimination in employment.

C o n c l u s io n

For the foregoing reasons, the petition for a writ of 
certiorari should be granted and the decision of the court 
below reversed.

Respectfully submitted,

Julius L. Chambers 
* Charles Stephen Ralston 

Eric Schnapper 
Marina Hsieh

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner

* Counsel of Record



APPENDIX



DECISION OF THE COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

AUGUST 27, 1992

No. 91-6325

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Thresa Kuhn, )
Plaintiff-Appellant, )

)
) ON APPEAL from the United 

v. ) States District Court for
) the Western District of 
) Kentucky.

Island Creek Coal Company,)
Defendant-Appellee. )

___________________________ )

BEFORE: KENNEDY, NELSON, and BATCHELDER,
Circuit Judges.

PER CURIAM. Plaintiff-appellant, Thresa Kuhn 
("Kuhn"), appeals the district court’s grant of summary 
judgment to defendant-appellee, Island Creek Coal 
Company, on her disparate treatment and disparate impact 
claims in this action brought under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. We affirm.



2a

I.

In July of 1987, Kuhn contacted Island Creek Coal 
Company ("Island Creek") regarding possible employment. 
Kuhn submitted a resume and applied for four positions 
with Island Creek: rod person, safety inspector, standards 
control inspector, and mine inspector.1 In October of 1987, 
Kuhn interviewed with Island Creek, as did a number of 
other applicants. Island Creek considered Kuhn for, but did 
not offer her employment in, the positions of rod person, 
safety inspector, and standards control inspector. Island 
Creek did not consider Kuhn for the position of mine 
inspector because she failed to meet the minimum 
requirement of ten years’ mining experience.2

A safety inspector position became available in 
September of 1987 when Darold Gamblin, who formerly had 
held the position, was promoted. However, because 
Gamblin was demoted back to the safety inspector position 
shortly thereafter, none of the interviewees was offered the 
position. The two rod person positions3 available required 
a minimum of two years’ experience in that area. Although 
Kuhn only had one to two months’ rod person experience, 
Island Creek decided to interview her for the position 
because, based on her application and resume, including the 
fact that she had taken two college courses in surveying, it

1 Between late summer of 1987 and early 1988, Island Creek 
restructured its safety department. As a result of this restructuring, 
the new positions of standards control inspector and mine inspector 
were created. The positions of rod person and safety inspector 
existed prior to restructuring.

2 Kuhn had approximately three years’ mining experience. As 
of February 1990, the mine inspector position no longer exists at 
Island Creek’s Western Kentucky Division.

3 A  rod person is a member of an underground surveying crew 
who assists in making underground mine measurements.



3a

was believed she might be qualified for the position. 
However, Island Creek subsequently hired Don Johnson and 
Don Bell for the two rod person positions. Johnson had ten 
years’ surveying experience and three years’ rod person 
experience and was a registered surveyor. Bell had eight 
years’ engineering and surveying experience and, like Kuhn, 
held a B.S. degree in mine management.

The standards control inspector position, which was 
created when Island Creek restructured its safety 
department, required qualifications similar to those required 
for the established safety inspector position. These 
qualifications included three years’ underground mining 
experience, mine foreman certification, and Mine Safety and 
Health Administration ("MSHA") instruction certification. 
Therefore, when this new position was created, rather than 
interviewing additional applicants, Island Creek simply 
reviewed the files of the applicants for the safety inspector 
position, including Kuhn. Jeffrey Porter was hired to fill this 
position. Porter had eight years’ mining experience, was 
certified as a Kentucky mine foreman, had conducted 
MSHA training courses for a number of Island Creek 
employees, including individuals involved in the hiring 
process for this position, and was familiar with the operation 
of all the Island Creek mining equipment. Kuhn, on the 
other hand, had three years’ experience and MSHA 
certification, but did not have Kentucky mine foreman 
certification4 or machinery experience equivalent to Porter’s.

On September 16, 1988, Kuhn filed in United States 
District Court for the Western District of Kentucky a

4 Kuhn held the Illinois equivalent of Kentucky mine foreman 
certification. K.R.S. § 351.120(8) grants reciprocity, subject to the 
approval of the commissioner, to anyone holding mine foreman 
certification in another state. However, reciprocity is only effective 
for a maximum of 90 days. Id. Kuhn did have a college degree, which 
Porter lacked.



4a

complaint alleging that Island Creek had discriminated 
against her on the basis of her sex in not hiring her for any 
of the four positions. On November 29, 1989, Kuhn moved 
for partial summary judgment on her mine inspector 
discrimination claim. The following day, Island Creek 
moved for summary judgment as to the safety inspector, rod 
person, and standards control inspector positions. On 
August 28, 1990, the district court denied Kuhn’s motion on 
the ground that the record was not fully developed 
concerning the alleged similarity of the safety inspector and 
mine inspector positions. In a separate order entered the 
same day, the court also granted Island Creek’s motion. On 
January 31, 1991, Island Creek moved for summary 
judgment on the mine inspector claim and, on October 3, 
1991, the district court granted summary judgment on this 
claim and entered a final order from which Kuhn timely 
appealed.

II

We review de novo the district court’s grant of 
summary judgment. See, e.g., Wilmer v. Tennessee Eastman 
Co., 919 F.2d 1160, 1162 (6th Cir. 1990). Summary 
judgment may, where appropriate, be granted in a Title VII 
case. Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064,1067 
(6th Cir.), cert, denied, 111 S.Ct. 516 (1990). Summary 
judgment is proper "if the pleadings, depositions, answers to 
interrogatories, and admissions of file, together with 
affidavits, if any, show that there is no genuine issue as to 
any material fact and that the moving party is entitled to a 
judgment as a matter of law." Fed. R. Civ. P. 56(c). The 
burden of demonstrating the absence of a genuine issue of 
material fact is on the party moving for summary judgment. 
However, where, as here, the burden of proof at trial will be 
on the nonmoving party, the moving party can meet its 
burden by showing an absence of evidence to support an 
essential element, for which the nonmoving party will bear



5a

the burden of proof, of the nonmoving party’s case. Celotex 
v. Catrett, A ll  U.S. 317, 323-24 (1986). The burden then 
shifts to the nonmoving party, who, to avoid summary 
judgment, must demonstrate that a reasonable trier of fact 
could find for the nonmoving party. Matsushita Elec. Indus. 
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Kuhn has raised claims of sex discrimination 
predicated on both disparate treatment and disparate impact 
theories. We address first the disparate treatment claim, 
which has been raised as to the positions of rod person, 
safety inspector, and standards control inspector.3 * 5 A 
plaintiff can establish disparate treatment through either 
direct or indirect evidence of discrimination. Kuhn has not 
come forward with any direct evidence that Island Creek 
discriminated against her on the basis of her sex. In the 
absence of direct evidence of discrimination, the framework 
for adjudication of a Title VII claim is set forth in 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and 
Texas Dep’t o f Community Affairs v. Burdine, 450 U.S. 248 
(1981).6

3 In its October 3,1991, Opinion, the district court determined
that, because Kuhn, in her initial summary judgment motion, had
failed to allege a disparate treatment theory as to the mine inspector 
position, it was unnecessary for the court to address this claim. We 
agree that Kuhn failed to raise this claim in the district court and find 
that this failure constituted a waiver of her right to raise the issue on 
appeal. United States v. Nagi, 947 F.2d 211, 213 (6th Cir. 1991), cert, 
denied, 112 S. Ct. 2309 (1992).

6 This court has held that statistical disparity, if sufficiently 
probative, can establish a prima facie case of disparate treatment. 
Equal Employment Opportunity Comm’n v. Ball, 661 F. 2d 531, 537 
(6th Cir. 1981). In that case, the statistical disparity was between 
promotion rates of male and female employees who already had been 
hired. By having been hired, those employees, in effect, had 
established their qualifications. Here, however, the statistical

(continued...)



6a

Under this framework, Kuhn first must make out a 
prima facie case of discrimination by showing that i) she was 
a member of a protected class; ii) she applied and was 
qualified for a position that was open; iii) she was rejected; 
and iv) after her rejection, the position remained open, and 
the employer continued to seek applicants having her 
qualifications. McDonnell Douglas, 411 U.S. at 802. Kuhn 
established that she met all these elements, including 
processing the minimum qualifications, only as to the 
standards control inspector position. Thus, she has made 
out a prima facie case only as to this position.7

Kuhn failed to make out a prima facie case as to the 
positions of rod person and safety inspector. She did not 
demonstrate that she met the required minimum of two 
years’ experience as a rod person and, therefore, she did not 
show that she was qualified for the position. With respect 
to the safety inspector position, because the position was 
filled through the demotion of Darold Gamblin back into his 
former position, none of the applicants, male or female, was 
selected to fill the position. Island Creek did not continue 
to seek applicants and thus did not hire an applicant from 
outside the protected class. Therefore, under the above 
analysis, Kuhn has not made out a prima facie case as to

‘(...continued)
evidence presented by Kuhn relates solely to the relative percentages 
of males and females actually employed in the at-issue jobs at Island 
Creek, and not to the relative percentages of male and females in the 
pool of applicants qualified for these jobs. In the absence of 
admissible statistical evidence relating to the qualified applicant pool, 
we cannot draw valid inferences as to the reason for any statistical 
disparity between male and female employees in these at-issue jobs. 
See, e.g., City of Richmond v. JA. Croson Co., 488 U.S. 469, 501-02 
(1989).

7 Island Creek concedes that Kuhn was minimally qualified for 
the standards control inspector position.



7a

either of these positions.8

Merely making out a prima facie case of disparate 
treatment does not, without more, save a plaintiff from 
summary judgment. Gagne v. Northwestern Nat’l Ins. Co., 
881 F.2d 309, 314 (6th Cir. 1989). Unless the plaintiff then 
is able to "adduce sufficient evidence from which a 
reasonable juror could conclude that ‘pretext’ existed, the 
district court should enter summary judgment in favor of the 
defendant." Mays v. Chicago Sun-Times, 865 F.2d 134, 137 
(7th Cir. 1989). See also Duchon v. Cajon Co., 791 F.2d 43, 
46 (6th Cir. 1986). Once Kuhn made out a prima facie case 
as to the standards control inspector position, the burden 
shifted to Island Creek to articulate a legitimate, 
nondiscriminatory reason for Kuhn’s rejection. Burdine, 450 
U.S. at 254-55. Island Creek’s proffered reason, that it hired 
Jeffrey Porter because he was the individual best qualified 
for the position, is clearly legitimate. Once Island Creek 
articulated this legitimate, nondiscriminatory reason, any 
presumption of discrimination created by the prima facie 
case was negated, and Kuhn then was required to meet her 
burden of persuasion by showing that the asserted reason 
was pretextual "either directly by persuading the court that 
discriminatory reason more likely motivated the employer or 
indirectly by showing that the employer’s proffered

8 Even were we to conclude that Kuhn had made out a prima 
facie case with respect to the safety inspector or rod person positions, 
the result would not change. Island Creek articulated a legitimate, 
nondiscriminatory reason for hiring Don Johnson and Don Bell to fill 
the available rod person positions, namely, that they possessed 
qualifications for these positions that were superior to those of Kuhn. 
Likewise, Island Creek produced evidence to show that Darold 
Gamblin had considerably more mining experience than Kuhn, 
including a number of years’ experience as a safety inspector. Kuhn 
has failed to raise a genuine issue of material fact as to the 
nonpretextual nature of Island Creek’s stated reasons. Therefore, 
even had Kuhn made out a prima facie case, summary judgment still 
would be appropriate on these claims.



8a

explanation is unworthy of credence." Id. at 256.

Kuhn essentially attempted to meet this burden by 
alleging that Island Creek either should have used different 
selection criteria or should have weighed differently the 
criteria it did use in selecting other individuals for the 
available positions.9 Kuhn has misconstrued the analysis. 
The role of a court is not to interfere with an employer’s 
right to exercise its bona fide business judgment in selecting 
employees for the workforce. Ramos v. Roche Prod., Inc., 
936 F.2d 43, 47-48 (1st Cir.), cert, denied sub nom. Rossy v. 
Roche Prod., Inc., 112 S.Ct. 379 (1991). The issue thus is 
not whether Island Creek made objectively wise hiring 
decisions, but whether the plaintiff has shown that the 
selection process employed was a pretext for

9 For example, Kuhn contends that Island Creek was incorrect 
in stating that she was a greater employment risk than Porter because 
she changed jobs more frequently than Porter. However, Kuhn’s job 
changes were generally voluntary, whereas Porter’s were due to 
layoffs or other involuntary reasons. Kuhn also contends that she had 
mine certification equivalent to Porter’s. However, her Illinois 
certification was good in Kentucky for only a 90-day period, after 
which time she could continue to be certified only by passing the 
Kentucky mine inspector exam. Kuhn also contends that she had 
superior education and experience for the position of standards 
control inspector. However, Porter had considerably more actual 
mining experience, and the fact that, unlike Kuhn, he lacked a college 
degree was not significant because it was not one of the critical 
selection criteria. Kuhn further contends that, had she been given the 
chance, she could have demonstrated that she had a training style as 
impressive as Porter’s. However, Island Creek was under no 
affirmative obligation to design a selection process that ensured her 
the same access to Island Creek management employees as Porter 
had as part of his job with the company prior to his being selected for 
the standards control position.



9a

discrimination.10 Kuhn has not come forward with evidence 
from which a reasonable juror could conclude that Island 
Creek intentionally discriminated against Kuhn.11 Therefore, 
summary judgment also was appropriate on the standards 
control inspector disparate treatment claim.

We turn now to Kuhn’s disparate impact claims.12 
Kuhn contends that the Civil Rights Act of 1991 ("Act"),13 
which was enacted on November 21,1991, should be applied 
retroactively to the present case, which arose prior to the 
date of enactment. However, this issue has been settled 
adversely to Kuhn’s position in this Circuit by our decision 
in Vogel v. City o f Cincinnati, 959 F.2d 594, 598 (6th Cir. 
1992) (holding that the Act does not apply retroactively to 
a claim for damages resulting from a city’s hiring policy), 
petition for cert, filed (June 11, 1992). Therefore, because 
the Act is inapplicable, we examine Kuhn’s disparate impact

10 Where an employer has hired a demonstrably more qualified 
individual from outside the protected class rather than a less qualified 
individual from within the class, this is evidence that the hiring 
decision was nonpretextual. Scales v. 7.C. Bradford and Co., 925 F.2d 
901, 906 (6th Cir. 1991) (finding not clearly erroneous the district 
court’s determination that, because the individual hired was more 
qualified, no pretext was shown).

11 Kuhn’s evidence includes deposition testimony of a number 
of women who alleged that they had received discriminatory 
treatment at the hands of Island Creek. However, this testimony 
does not support Kuhn’s claim that Island Creek discriminated 
against her through its hiring practices.

12 The Supreme Court has held that Title VII prohibits "not 
only overt discrimination but also practices that are fair in form but 
discriminatory in practice." Griggs v. Duke Power Co., 401 U.S. 424, 
431 (1971). This theory of liability is known as the "disparate impact" 
theory.

13 A  plaintiff who brings an action under the Act may recover 
compensatory and punitive damages and also may receive a jury trial.



10a

claims under the law as it existed prior to passage of the 
Act.

In Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 
642 (1989), the Supreme Court delineated the appropriate 
analysis for a disparate impact case under Title VII. The 
Court stated that, although a plaintiff may rely on statistical 
proof to make out aprima facie case of disparate impact, the 
proper statistical comparison typically is ‘between the 
[sexual] composition of the qualified persons in the labor 
market and the persons holding at-issue jobs...." Id. at 560. 
Where the absence of protected employees in the at-issue 
jobs is due, not to discriminatory hiring practices, but to a 
scarcity of qualified applicants from this protected group, the 
hiring practices of the employer have not had an unlawful 
disparate impact. Id. at 656-57. In the present case, Kuhn 
did not show a disparity between the percentage of qualified 
female applicants and the percentage of females holding the 
at-issue jobs. Instead, she relied on the type of disparity 
expressly found not probative by the Supreme Court, 
namely, the ‘bottom line’ disparity between the percentage 
of males and females actually holding the rod person, safety 
inspector, standards control inspector, and mine inspector 
positions. Therefore, Kuhn has failed to make out a prima 
facie case, and summary judgment on the disparate impact 
claim is appropriate.

Even were Kuhn able to make out a prima facie 
disparate impact case, however, Island Creek has come 
forward with evidence that its hiring process "serves, in a 
significant way, the legitimate employment goals of the 
employer." Wards Cove, 490 U.S. at 659. With respect to 
the safety inspector position, the decision to demote Darold 
Gamblin back into a position that he formerly held, rather 
than hire one of the applicants, served Island Creek’s stated 
goal of filing the available positions with the most qualified 
individuals available. The decision to hire Don Bell, Don 
Johnson, and Jeffrey Porter to fill the positions of rod 
person and standards control inspector, based on their



11a

superior experience and other qualifications, served the same 
legitimate goal.

Finally the decision not to consider Kuhn for the 
mine inspector position, because she lacked ten years’ 
mining experience, was based on two legitimate 
considerations. First, given the significant responsibilities of 
a mine inspector, substantial mining experience, including 
supervisory experience, was deemed necessary to enable 
mine inspectors to anticipate and recognize potential 
problems. Second, Island Creek attempted to parallel the 
ten-years’ experience requirement for Kentucky state mine 
inspectors in order to ensure both credibility and good peer 
relationship with the state inspectors.

Once Island Creek had met its burden by producing 
a business justification for its selection criteria, Kuhn could 
only prevail by coming forward with an equally effective 
alternative hiring practice that would result in a less 
disparate impact. Kuhn has not demonstrated an equally 
effective alternative to the selection criteria on which Island 
Creek relied.14 Therefore, even if Kuhn had established a

14 Kuhn alleges that, because few women have the requisite ten 
years’ mining experience, few women will be able to qualify for the 
mine inspector position, and that this requirement to qualify for the 
position produces a discriminatory impact on women. Even if we 
accept this as true, however, Island Creek could not be held liable 
unless Kuhn could show that a specific Island Creek employment 
practice had a significant disparate impact on the women applicants 
for the at-issue jobs. Wards Cove, 490 U.S. at 657. Kuhn has failed 
to meet this burden.

Kuhn suggests as an alternative to the ten-year requirement 
that Island Creek could, following the framework of the analogous 
Kentucky statute, use a combination of education and experience to 
set minimum qualifications for mine inspectors. However, K.R.S. § 
351.090 provides that a maximum of three years’ education may be 
substituted for three years’ experience. Under this formula, Kuhn

(continued...)



12a

prima facie case as to her disparate impact claims, summary 
judgment properly was granted to Island Creek. See Abbot 
v. Federal Forge, Inc., 912 F.2d 867, 875-77 (6th Cir. 1990).

Ill

Summary judgment properly was granted to Island 
Creek on all of Kuhn’s sex discrimination claims. The 
judgment of the district court is affirmed. 14

14(...continued)
would still fall well short of the minimum ten years.

Finally, as the Supreme Court has counseled, because courts 
are "generally less competent than employers to restructure business 
practices.. .  the judiciary should proceed with care before mandating 
that an employer must adopt a plaintiffs alternate selection or hiring 
practice in response to a Title VII suit." Id. at 661 (quoting Fumco 
Constr. Co. v. Waters, 438 U.S. 567, 578 (1978)).



13a

DECISION OF DISTRICT COURT
AUGUST 27, 1990

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 

AT OWENSBORO

THRESA KUHN PLAINTIFF

v. CIVIL ACTION NO. 88-0143-0(CS)

ISLAND CREEK COAL COMPANY DEFENDANT

MEMORANDUM OPINION AND ORDER

This matter is before the court on motion of the 
plaintiff, Thresa Kuhn (hereinafter "Kuhn"), for partial 
summary judgment in this employment discrimination case 
against Island Creek Coal Company (hereinafter "Island 
Creek").

Kuhn has alleged that a facially neutral hiring 
criterion for employment in the position of mine inspector, 
ten years underground mining experience, is discriminatory 
with respect to women. She urges that coal mines are far 
more likely to have men working at the face, thus women 
are disadvantaged in attempting to gain the required 
experience to move into a mine inspector’s positions.

We will assume for purposes of this analysis only that 
Kuhn has made a prima facie case of disparate impact. 
Island Creek must then establish that the challenged hiring 
criterion was utilized for a valid or legitimate business 
purpose or business necessity. See Wards Cove Packing Co.
v. A tonio ,____U .S .____ , 109 S. Ct. 2115, 104 L. Ed. 2d 733
(1989).



14a

Island Creek has come forward with the following 
evidence, through deposition testimony and affidavits, in 
support of its assertion that the ten-year requirement is a 
business necessity:

Island Creek reorganized its safety department 
seeking to upgrade and improve the department. The 
position of mine inspector was created in the reorganization, 
in part, because Island Creek found the predecessor position 
of safety inspector was not adequately fulfilling the perceived 
needs of the department with respect to performing 
inspections and seeking out problems in the mine which 
needed to be addressed. Island Creek's position of mine 
inspector was modeled after the State of Kentucky mine 
inspector position which requires ten years of mining 
experience. In some respects, the duties of the new mine 
inspector resemble those of the old safety inspector. In 
some respects the duties were expanded. In other respects 
they were contracted by assigning some tasks to the safety 
control inspector.

Kuhn asserts that in fact there is no such business 
necessity. She contends that the positions of safety inspector 
(requiring three years experience) and the later mining 
inspector (requiring ten years experience) are the same. She 
has attempted to undercut the purported business necessity 
by showing that three years experience was sufficient for the 
previous job of safety inspector and that the position now 
called mine inspector is essentially the same. The court 
finds, however, that facts have not been sufficiently 
developed with respect to the parameters and goals of these 
two jobs and the character of the purported business 
necessity. There is a question raised whether these can be 
considered the same job. This court will not foreclose Island 
Creek at this juncture from developing its argument that the 
requirement of ten years experience for the new position 
constitutes a legitimate business necessity.



15a

The motion of Kuhn for partial summary judgment 
in this action is DENIED.

IT IS SO ORDERED this 27th day of August. 1990.

Charles R, Simpson III 
CHARLES R. SIMPSON III

UNITED STATES DISTRICT JUDGE



16a

DECISION OF DISTRICT COURT
AUGUST 27, 1990

[CAPTION]

MEMORANDUM OPINION

This matter is before the court on motion of the 
defendant, Island Creek Coal Company (hereinafter "Island 
Creek"), for summary judgment with respect to certain 
claims of sex discrimination.

The plaintiff, Thresa Kuhn (hereinafter "Kuhn"), has 
alleged that she was discriminated against on the basis of her 
sex when Island Creek refused to hire her for a number of 
positions available in the safety department. Island Creek 
seeks summary judgment with respect to its decision not to 
hire her for three of those positions, the positions of safety 
inspector, rod person and standards control inspector.

A  party moving for summary judgment has the 
burden of showing that there are no genuine issues of fact 
and that the movant is entitled to summary judgment as a 
matter of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 
151-60, 90 S. Ct. 1598, 16 L. Ed. 2d 142 (1970); Felix v. 
Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not eveiy 
factual dispute between the parties will prevent summary 
judgment. The disputed facts must be material. They must 
be facts which, under the substantive law governing the 
issue, might affect the outcome of the suit. Anderson v. 
Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The 
dispute must also be genuine. The facts must be such that 
if they were proven at trial, a reasonable jury could return 
a verdict for the nonmoving party. Id. at 2510. The 
disputed issue does not have to be resolved conclusively in 
favor of the nonmoving party, but that party is required to 
present some significant probative evidence which makes it



17a

necessary to resolve the parties’ differing versions of the 
dispute at trial. First National Bank o f Arizona v. Cities 
Service Co., 391 U.S. 253, 288-89 (1968). The evidence must 
be construed in a light most favorable to the party opposing 
the motion. Bohn Aluminum & Brass Corp. v. Storm King 
Corp., 303 F.2d 425 (6th Cir. 1962).

Island Creek urges with respect to each of the three 
positions that the individuals hired were more qualified than 
Kuhn. In fact, her resume and applications were reviewed 
for all three of the jobs but ultimately she was not hired. 
The evidence presented through deposition testimony, Island 
Creek’s employment documents and affidavits is as follows:

1. Safety Inspector — This vacancy was created when 
Darold Gamblin who had been employed in that position 
was promoted. (Kuhn depo., p. 223; Ferguson depo., p. 
14). Kuhn was interviewed for the position. (Kuhn depo., 
p. 222; Ferguson depo., p. 15). The position was not filled 
with an interviewee. Instead Gamblin was demoted to his 
old position as safety inspector. (Kuhn depo., p. 229).

2. Rod Person — Kuhn applied for the rod person 
position and was interviewed. (Ferguson depo., p. 24, 
Ferguson affidavit, para. 21). She had a month or two of 
experience as a rod person and two college courses in 
surveying. (Kuhn depo., pp. 234-236, Ferguson depo., p. 24, 
Ferguson affidavit, para. 22). The experience required for 
the position was two years; however, she was interviewed 
because, based on her application and resume she might 
have been considered by Island Creek to be qualified. 
(Ferguson depo., p. 24, Ferguson affidavit, para. 21). Don 
Johnson and Don Bell who possessed superior qualification 
to Kuhn were hired into the two rod person positions. Don 
Johnson had ten years surveying experience, three years rod 
person experience, and was a registered surveyor. (Ferguson 
affidavit, para. 23, 24). Don Bell had eight years 
engineering and surveying experience and a B.S. degree in 
mine management. (Ferguson affidavit, para. 23, 24).



18a

3. Standards Control Inspector — This position was 
created when Island Creek’s safety department was 
reorganized. (Ferguson affidavit, para. 26). The 
qualifications for standards control inspector were very 
similar to the requirements for the previous safety inspector 
position for which Kuhn and six other applicants had been 
interviewed. Island Creek reviewed the resumes, 
applications and interview sheets of those persons who had 
been interviewed for the safety inspector’s position. No 
additional interviews were conducted. (Ferguson affidavit, 
para. 28). Kuhn was advised of the opening and told she 
would be considered for the position based upon her earlier 
interview. (Ferguson affidavit, para. 28, 29). Jeffrey Porter 
was selected to fill the position. He had eight years of 
mining experience, was certified as a mine foreman with the 
Commonwealth of Kentucky, and he had conducted MHSA 
refresher training courses for Island Creek employees 
including McGill, Mynhier and Gamblin, individuals involved 
in the hiring process for the standards control inspector 
position. Additionally, Porter had experience on a 
production unit and was familiar with the operation of all 
the equipment. (McGill depo., p. 26; Gamblin depo., pp. 13- 
14). By contrast, Kuhn had three years mining experience, 
was not certified as a mine foreman but did have MHSA 
certification. There were many types of machinery with 
which she did not have familiarity. (Kuhn depo. pp. 77-81, 
224, and resume).

Kuhn has failed to come forward in response to this 
motion for summaiy judgment with evidence showing a 
material issue of fact exists which would preclude the 
granting of Island Creek’s motion.

The response urges that a material issue of fact exists 
with respect to the assessment of whether Kuhn was 
unqualified or less qualified than the other applicants for the 
three positions in question. In support of this assertion, she 
points to her resume, her testimony regarding her 
educational and occupational background, as well as the



19a

testimony of Mynhier, the maintenance manager, and Dr. 
Joel Dill, a vocational expert. Kuhn’s resume and testimony 
reveal the extent of her experience and education as 
indicated above. Her qualifications fall significantly below 
those of the individuals hired for the positions. Mynhier 
stated in his deposition at page 40 "I’d like to see her get 
on" with the company because of her qualifications and 
credentials but further stated "not for a particular position". 
His statement reveals only his opinion that she should be 
employed by Island Creek, not that she could successfully 
compete for any of the positions in issue in this case. The 
testimony of Dill is similarly of no assistance in attempting 
to establish the existence of a material issue of fact. Dill 
testified that since women have not been employed in the 
coal mining industry as long as men, it would be difficult for 
women to successfully compete for positions requiring many 
years of practical experience. (Dill depo. p. 29). The three 
positions in question did not require more than three years 
of mining experience which Kuhn did possess. She had 
some but not enough rod person/surveying experience to 
meet the minimum 2-year requirement for the rod person 
position, however her application was considered and she 
was interviewed because there was the possibility that the 
decisionmakers might have found her qualified. (Ferguson 
depo. p. 24). Overall, Kuhn was less qualified than the 
individuals who were selected to fill the positions for which 
she competed. Kuhn was interviewed and considered for the 
jobs with the other applicants. She was unsuccessful in 
obtaining any of the positions because the applicants hired 
had superior credentials.

Kuhn has failed to make a prima facie case of 
discrimination inasmuch as she has not shown that she "was 
rejected under circumstances which give rise to an inference 
of unlawful discrimination." Texas Department o f Community 
Affairs v. Bur dine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 
2d 207 (1981). She has not shown that Island Creek’s non- 
discriminatory explanation of hiring the superiorly qualified



20a

persons was pretextual. Mays v. Chicago Sun-Times, 865 
F.2d 134, 137 (7th Cir. 1989). She has not shown that the 
minimum experience requirements have a discriminatory 
impact on women. She has shown, at best, that 1) she did 
not obtain a position because she was under-qualified in 
comparison with the other applicants and 2) as a general 
proposition women are relative newcomers to the coal 
mining industry. This is simply insufficient to establish a 
prima facie case of discriminatory impact under the law. See
Wards Cove Packing Co. v. A tonio ,____U .S .____ , 109 S. Ct.
2115, 104 L. Ed. 2d 733 (1989). She has not come forward 
with any evidence to challenge the business justification for 
Island Creek’s minimum experience requirements for the 
positions. Wards Cove Packing Co. v. Atonio, supra.

This court finds, therefore, that no genuine issue of 
material fact exists and that Island Creek is entitled to 
summary judgment as a matter of law. A separate order will 
be entered this date in accordance with this opinion.

This 27th day of August, 1990.

Charles R. Simpson III /s/

CHARLES R. SIMPSON III 

UNITED STATES DISTRICT JUDGE



21a

ORDER OF DISTRICT COURT
AUGUST 27, 1990

[CAPTION]

ORDER

This matter having come before the court ton [sic] 
motion of the defendant, Island Creek Coal company, and 
for the reasons set forth in the memorandum opinion 
entered this date, and the court being otherwise sufficient 
advised, IT IS HEREBY ORDERED AND ADJUDGED 
that the motion of the defendant, Island Creek Coal 
Company, for summary judgment is GRANTED, and the 
cause of action herein is DISMISSED WITH RESPECT TO 
THE ALLEGATIONS OF SEX DISCRIMINATION IN 
HIRING REGARDING THE POSITIONS OF SAFETY 
INSPECTOR, ROD PERSON AND STANDARDS 
CONTROL INSPECTOR.

This 22 day of August, 1990.

/s/ Charles R. Simpson III 

CHARLES R. SIMPSON III 

UNITED STATES DISTRICT JUDGE



22a

DECISION OF DISTRICT COURT
SEPTEMBER 30, 1991

[CAPTION]

MEMORANDUM OPINION

Plaintiff, Thresa Kuhn, brought this suit against 
Island Creek Coal Company ("Island Creek"), alleging 
unlawful employment practices in violation of 42 U.S.C. § 
2000e-2(a). Specifically, Kuhn alleges that Island Creek’s 
employment requirements and hiring practices discriminate 
against women.

This court previously granted summary judgment in 
favor of Island Creek regarding the positions of safety 
inspector, rod person, and standards control inspector. We 
denied Kuhn’s motion for summary judgment concerning the 
mine inspector position disparate impact claim, and allowed 
Island Creek to develop its business necessity argument. 
This case stands submitted on Island Creek’s motion for 
summary judgment on the mine inspector claim.

I

The undisputed facts are summarized as follows: In 
July, 1987, Kuhn contacted Island Creek concerning possible 
employment opportunities in the West Kentucky Division. 
Kuhn submitted a copy of her resume and was subsequently 
interviewed by several members of Island Creek’s 
management in October, 1987.

In late summer of 1987, the West Kentucky Division 
of Island Creek Coal Company made request of its 
corporate office to expand the number of positions in its 
safety department. Island Creek reorganized its safety 
department in an effort to upgrade and improve the



23a

department in early 1988. During this restructuring, Island 
Creek created two new positions: mine inspector and
standards control inspector.1

Island Creek created the mine inspector position to 
rectify what it perceived to be a weakness in the former 
safety inspector position. Specifically, Island Creek sought 
to improve overall mine inspection, trouble shooting, and on 
the spot problem solving. Responsibilities of the safety 
inspector position included: accompanying outside
inspectors during mine inspections; collecting dust samples; 
conducting noise surveys; and general compliance work. The 
newly created mine inspector became responsible for 
conducting internal safety inspections while the standards 
control inspector dealt with the general compliance work.

The newly created mine inspector position required 
more stringent qualifications than the former safety 
inspector position. The safety inspector position required 
three years’ underground mining experience, preferably with 
face experience, mine foreman certification, MSHA 
instructor certification, and EMT certification. The newly 
created standards control inspector position carried primarily 
the same requirements as the former safety inspector 
position. The mine inspector position required a minimum 
of ten years’ underground mining experience, preferably with 
experience at the face, mine foreman certification, mine 
rescue experience, and experience in some mine supervisory 
capacity. Island Creek modeled the requirements of its mine 
inspector position after the State of Kentucky’s mine 
inspector position, which also requires ten years’ mining

Creation of the two new positions resulted in five employment 
openings. One standards control inspector was to be placed in each 
of the West Kentucky Division’s three mines. One mine inspector 
was to be assigned the Providence mine and the other mine inspector 
was to be responsible for the Union County mines (Ohio No. 11 and 
Hamilton No. 2).



24a

experience.

Based upon her resume and initial interview, Island 
Creek considered but did not select Kuhn for employment 
in the positions of safety inspector, rod person, and 
standards control inspector. However, Island Creek did not 
consider Kuhn for the mine inspector position because she 
lacked the requisite ten years’ underground mining 
experience.

n
Kuhn alleges that the facially neutral hiring criterion 

of ten years’ underground mining experience for the mine 
inspector position discriminates against women. She 
contends that the ten year requirement has a disparate 
impact on women because women are relative newcomers to 
the coal mining industry. She further alleges that even those 
women who have worked as miners are precluded from 
obtaining the necessary face experience to gain promotion 
(e.g., mine inspector) within the mines.

Island Creek seeks summary judgment with respect 
to the mine inspector position claim. In support of its 
motion, Island Creek asserts that Kuhn has failed to 
establish a prima facie case of disparate impact and that a 
legitimate business necessity supports the ten year 
requirement of the mine inspector position.

Fed. R. Civ. P, 56(c) provides that summary 
judgment is proper "if the pleadings, depositions, answers to 
interrogatories, and admissions on file, together with the 
affidavits, if any, show that there is no genuine issue of 
material fact and that the moving party is entitled to a 
judgment as a matter of law." See Canderm Pharmacal, Ltd. 
v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 
1988). The party moving for summary judgment bears the 
burden of demonstrating the absence of a genuine issue of



25a

material fact. Celotex Corp. v. Catrett, A ll  U.S. 317, 324 
(1986).

However, the moving party’s burden may be 
discharged by demonstrating that there is an absence of 
evidence to support an essential element of the nonmoving 
party’s case for which he or she has the burden of proof. 
Celotex Corp., A ll  U.S. at 323. Once the moving party 
demonstrates this lack of evidence, the burden passes to the 
nonmoving party to establish, after an adequate opportunity 
for discovery, the existence of a disputed factual element 
essential to his or her case with respect to which he or she 
bears the burden of proof. Celotex Corp., A ll U.S. at 323. 
If  the record taken as a whole could not lead the trier of 
fact to find for the nonmoving party, the motion for 
summaiy judgment should be granted. Matsushita for the 
nonmoving party, the motion for summary judgment should 
be granted. Matsushita Elec. Indus. Co. v. Zenith Radio 
Corp., 475 U.S. 574, 586 (1986).

We must look to the substantive law controlling this 
case to identify which facts are material for summary 
judgment analysis. Anderson v. Liberty Lobby, Inc., A ll  U.S. 
242, 249 (1986). For the reasons set forth below, we 
conclude that Island Creek is entitled to summary judgment 
as a matter of law.

m
Island Creek asserts that Kuhn has failed to establish 

a prima facie case of disparate impact concerning the ten 
year experience requirement for the mine inspector position. 
We agree.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000e-2(a) provides in pertinent part that



26a

(a) It shall be an unlawful employment practice for 
an employer —

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to 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 nation 
origin . . . .

The Supreme Court determined in Griggs v. Duke Power Co., 
401 U.S. 424, 431 (1971), that Title VII prohibited "not only 
overt discrimination but also practices that are fair in form 
but discriminatory in practice." Under this theory of 
liability, "disparate impact," a facially neutral employment 
practice may be found to violate Title VII even in the 
absence of evidence that the employer subjectively intended 
to discriminate. Wards Cove Packing Co. v. Atonio, 109 S.Ct. 
2115, 2119 (1989).

The claim before us is one of disparate impact.2 To 
establish a prima facie case, the plaintiff must begin by 
identifying the specific employment practice that is 
challenged. Wards Cove Pactdng Co., 109 S. Ct. at 2124 
(quoting Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777, 
2788 (1988). The plaintiff must go on to specifically show 
that the "challenged practice has a significantly disparate 
impact on employment opportunities" for a particular class. 
Id. at 2125. This second requirement is of particular

2Although Island Creek argues, in the alternative, that Kuhn has 
failed to establish a prima fade case of disparate treatment, this claim 
was never raised by Kuhn. In her initial Motion for Summary 
Judgment, Kuhn’s argument concerning the mine inspector position 
addressed only a disparate impact claim. This court’s prior ruling 
concerning the mine inspector position dealt only with a disparate 
impact claim. Since Kuhn has never advanced a disparate treatment 
claim with regard to the mine inspector position, we will not address 
Island Creek’s alternative argument.



27a

importance to prevent exposing employers to liability for 
"the myriad of innocent causes that may lead to statistical 
imbalances in the composition of their work forces." Id. 
(quoting Watson v. Fort Worth Bank & Trust, 108 S.Ct. at 
2787).

Kuhn has met the first requirement of the prima 
facie disparate impact claim. She specifically identified the 
particular employment practice which she claims has led to 
a disparate impact on employment opportunities of women 
in Island Creek. The complained of practice involves an 
objective employment requirement of 10 years’ underground 
mining experience for a mine inspector position.

We now address the second prima facie element, 
specific causation. Kuhn asserts that the causation element 
is met because, in her estimation, relatively few women are 
able to meet the 10 year requirement. Kuhn further 
contends that the causation is proved because no women 
were selected for the mine inspector positions. Even if we 
accept Kuhn’s argument that a disproportionately low 
percentage of women hold the at-issue jobs, this alone will 
not suffice to make out a prima facie case of disparate 
impact. See Wards Cove Packing Co., 109 S. Ct. at 2125.

Kuhn has failed to come forth with sufficient 
evidence to establish that it is Island Creek’s 10 year 
requirement which has a significantly disparate impact on 
the employment opportunities for women. Kuhn has failed 
to make a comparison between the gender composition of 
the at-issue jobs and the gender composition of the qualified 
population in the relevant labor market. She has produced 
no evidence beyond the memory of a few witnesses 
employed in the mining industry with regard to the 
composition of the relevant qualified labor market 
population. This is the important comparison — between 
gender composition of the qualified labor market and the 
persons holding at-issue jobs — that generally forms the 
proper basis for the initial inquiry in a disparate impact case.



28a

Wards Cove Packing Co., 109 S. Ct. 2121.

We cannot reach the conclusion suggested by Kuhn 
based upon the evidence presented. If the absence of 
women holding mine inspector positions is due to a dearth 
of qualified women (for reasons that are not Island Creek’s 
fault), Island Creek’s selection methods or employment 
practices cannot be said to have had a "disparate impact" on 
women. See Wards Cove Packing Co., 109 S. Ct. at 2122. 
Furthermore, Congress specifically provided that employers 
are not required to affirmatively avoid "disparate impact" 
(statistical imbalance) which results from innocent causes. 
See 42 U.S.C. § 2000e-2(j)3; Wards Cove Packing Co., 109 S. 
Ct. at 2122; Watson, 108 S. Ct. at 2787, and n. 2, 108 S. Ch­
at 2788 (opinion of O’Connor, J.).

Since Kuhn has failed to establish that the 10 years’ 
underground mining experience requirement specifically 
caused a disparate impact on the employment opportunities 
of women, we find that she has not established a prima facie 
case of disparate impact. Accordingly, we grant summary 
judgment in favor of Island Creek by separate order.

342 U.S.C. § 2000e-2(j) provides in pertinent part

Nothing contained in this subchapter shall be interpreted to 
require any employer . .  . subject to this subchapter to grant 
preferential treatment to any individual or to any group 
because of the . . .  sex of such individual or group on account 
of an imbalance which may exist with respect to the total 
number or percentage or persons of any sex employed by any 
employer . . . .



29a

IV

Although we dispose of Island Creek’s summary 
judgment motion on the ground that Kuhn has failed to 
establish a prima facie case of disparate impact, we shall 
address the propriety of Island Creek’s business necessity 
argument. We are convinced that summary judgment is 
proper even if Kuhn had established a prima facie case of 
disparate impact.

At this phase of the disparate impact case, we must 
consider the justification offered by an employer as to the 
use of the complained of practice. See Wards Cove Packing 
Co., 109 S. Ct. at 2125 (citing Albemarle Paper Co. v. Moody, 
422 U.S. 405, 425 (1975). It is generally well-established that 
at this stage of a disparate impact case, "the dispositive issue 
is whether a challenged practice serves, in a significant way, 
the legitimate employment goals of the employer." Wards 
Cove Packing Co., 109 S. Ct. at 2125, 2126 (citations 
omitted). A mere insubstantial justification in this regard 
will not suffice. Id. at 2126. However, there is no 
requirement that the challenged practice be "essential" or 
"indispensable" to pass muster. Id.

At this step of the analysis, Island Creek carries the 
burden of producing evidence of a business justification for 
its employment practice (i.e., the 10 years’ underground 
mining requirement). Island Creek has come forth with the 
following evidence to support its contention that the 10 year 
requirement constitutes a viable business justification. The 
Commonwealth of Kentucky requires that its mine 
inspectors have ten years’ coal mining experience.4 Island

“The Kentucky mine inspector requirements, in pertinent part, 
provide as follows:

(2) All mine inspectors, electrical inspectors, mine safety 
instructors, and inspectors of mine weights shall have a

(continued...)



30a

Creek assigns particular importance to this similarity with 
the Kentucky requirement, asserting that it wanted its 
internal inspectors to perform as "peers" with the Kentucky 
inspectors. Specifically, Island Creek urges that persons with 
similar experience and qualifications could work more 
closely with the state mine inspectors and resolve problems 
in a more efficient manner.

Although Island Creek asserts two additional 
justifications for the 10 year requirement, the two may fairly 
be viewed as one. This justification concerns safety. Island 
Creek contends that the sole reason for restructuring the 
safety department and the ultimate creation of the mine 
inspector position was to improve its overall mine safety. 
Island Creek implemented the 10 year requirement in an 
effort to cause the most qualified persons to conduct 
internal inspections. In order to adequately perform the 
duties of the mine inspector position, Island Creek urges 
that a person must have extensive knowledge of the many

“(...continued)
thorough knowledge of first aid and mine rescue and be able 
to instruct in first aid and mine rescue, and shall possess 
thoroughly the knowledge required of the commissioner by 
KRS 351.060, and shall have a thorough and practical 
knowledge of mining gained by at least ten (1) years’ 
experience in coal mines, at least two (2) of which must have 
been in mines in this state. For the purposes of this 
subsection, a degree in mining engineering from a recognized 
institution shall be deemed equivalent to two (2) years of 
practical experience in coal mines or an associate degree in 
mining technology from a recognized institution shall be 
deemed equivalent to one (1) year practical experience in 
coal mines. Persons desiring to use their mining engineering 
or technology degree for practical experience credit shall file 
a certified transcript of their grades and proof of having 
received their degree prior to examination.

Ky. Rev. Stat. Ann. § 351.090(2) (Michie/Bobbs-Merrill 1990 supp.).



31a

aspects of coal mining. Island Creek suggests that only 
through varied and extensive experience (/.<?., 10 years) can 
a person become familiar enough with the procedures of 
coal mining to adequately understand and perform safety 
inspections.

To justify a hiring requirement as a business 
necessity, an employer must show that its practices bear a 
manifest relationship to the specific position -- that the 
practices are related to job performance. Chrisner v. 
Complete Auto Trans., Inc., 645 F.2d 1251, 1259 (6th Cir. 
1981)(citations omitted). We are persuaded that Island 
Creek’s proffered safety justification adequately meets the 
business necessity requirement for disparate impact cases. 
We find that the 10 year requirement is manifestly related 
to the job requirements of the mine inspector position 
particularly in light of the risks posed to the workers’ and 
public’s safety in terms of life, limb, and property. See, e.g., 
Chrisner, 645 F.2d at 1262.

Having concluded that Island Creek has established 
a business necessity for the 10 year requirement, we must go 
on to consider the availability of alternate practices to 
achieve the same business ends, with less sexually 
discriminatory impact. See Wards Cove Packing Co., 109 S. 
Ct. at 2125 (citing Albemarle Paper Co. v. Moody, 422 U.S. 
405, 425 (1975). Kuhn bears the burden of persuasion. Id. 
at 2126.

the requirement merely as a pretext for discrimination. See 
id. [sic]

Kuhn asserts that a less discriminatory practice is 
available to Island Creek. She suggests that Island Creek 
could remedy the gender imbalance of mine inspectors by 
lowering the ten year experience requirement to the 
previously established three year requirement for safety 
inspectors. We cannot agree that this alternative practice 
would be equally effective as Island Creek’s chosen hiring



32a

procedures in achieving their legitimate employment goals. 
See Wards Cove Packing Co., 109 S. Ct. at 2127 (citing 
Watson, 108 S. Ct. at 2790).

We are cautioned by the Supreme Court that 
"[cjourts are generally less competent than employers to 
restructure business practices, consequently, the judiciary 
should proceed with care before mandating that an employer 
must adopt a plaintiffs alternate selection or hiring practice 
in response to a Title VII suit." Wards Cove Packing Co., 
109 S. Ct. 2127 (citing Fumco Construction Corp. v. Waters, 
438 U.S. 567, 578 (1978). We cannot agree that Kuhn’s 
proposed selection process would adequately serve Island 
Creek’s legitimate business goals.

V

We further note that Kuhn was not qualified for the 
mine inspector position even if the 10 year requirement was 
removed.

VI

For the reasons set forth above, we conclude that 
Island Creek is entitled to summary judgment as a matter of 
law, and Island Creek’s motion for summary judgment will 
be GRANTED by separate order.

This 30th day of Sept, 1991.

JsL
CHARLES R. SIMPSON III 

UNITED STATES DISTRICT JUDGE



33a

ORDER OF DISTRICT COURT 
SEPTEMBER 30, 1991

[CAPTION]

ORDER

For the reasons set forth in the memorandum 
opinion entered herein this date, IT IS ORDERED:

1. That Island Creek’s motion for summary judgment 
is GRANTED;

2. That the cause of action herein is DISMISSED 
WITH RESPECT TO THE ALLEGATIONS OF SEX 
DISCRIMINATION IN HIRING REGARDING THE MINE 
INSPECTOR POSITION; and

3. That this being the final remaining claim of Civil 
Action No. 88-0143-O(CS), this action is hereby 
DISMISSED.

There being no just reason for delay in its entry, this 
is a final order.

IT IS SO ORDERED this 30th day of Sept, 1991.

/s/__________________

CHARLES R. SIMPSON III 

UNITED STATES DISTRICT JUDGE



34a

ORDER OF THE COURT OF APPEALS 
DENYING REHEARING 

OCTOBER 14, 1992

[CAPTION]

BEFORE: KENNEDY, NELSON, and BATCHELDER,
Circuit Judges.

The court having received a petition for rehearing en 
banc, and the petition having been circulated not only to the 
original panel members but also to all other active judges of 
this court, and no judge of this court having requested a 
vote on the suggestion for rehearing en banc, the petition 
for rehearing has been referred to the original hearing 
panel.

The panel has further reviewed the petition for 
rehearing and concludes that the issues raised in the petition 
were fully considered upon the original submission and 
decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green 

Leonard Green, Clerk