performance unsatisfactory. Mr. Green had significant problems with his attendance and had a number of run-ins with fellow workers. The plaintiff admits that his attitude began to slip and that he began to drink heavily.
Through statistical evidence, Mr. Green established that there were very few black managers of Foot Locker stores across the nation and not many in the Washington area, which has a large black population. The plaintiff also presented expert testimony that there was very little chance that the fact that most black managers worked at "ethnic" stores was the result of chance.
There are, however, factors other than racially conscious decisionmaking that could account for the fact that most black managers worked in ethnic stores. For example, if it were true that a higher percentage of blacks applied for manager positions in ethnic markets than in non-ethnic markets, this could account for some or all of the result that most black managers worked in ethnic market stores. Because by definition a typical "ethnic" market included a higher proportion of minorities than a "nonethnic" market, it is reasonable to assume that the work force at a store would resemble the customer population in racial makeup, even in the absence of any racially discriminatory hiring practices. See Teamsters v. United States, 431 U.S. 324, 339 n.20, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977) (absent discrimination, an employer's work force should be expected to resemble the racial makeup of the community).
While admitting into evidence a number of statistics and expert analysis, the Court did not permit the plaintiff to admit into evidence a statistical comparison of the proportion of blacks serving as Foot Locker managers in the Washington area to the proportion of blacks in the Washington labor market area as a whole. See Green v. Kinney Shoe Corporation, 711 F. Supp. 34 (D.D.C. 1989) (pre-trial ruling). The proper test would have been to compare the proportion of blacks hired to be Foot Locker managers in the Washington area to the proportion of blacks minimally qualified for the position -- in this case, those who had successfully completed the management training program. See Palmer v. Shultz, 259 U.S. App. D.C. 246, 815 F.2d 84, 91 n.6 (D.C. Cir. 1987). The rationale for this tighter comparison is that there may be a different proportion of blacks who are qualified for a particular position than the proportion of blacks in the general labor market, for reasons completely unrelated to the decisions of the defendant.
Of course, the preferred comparison -- the proportion of blacks hired to the proportion of blacks qualified -- may not be perfect in a case in which the plaintiff claims that the defendant has discriminated against blacks in determining who is in the pool of qualified applicants.
The possible inaccuracy of such a comparison does not mean, however, that the Court should then admit evidence of another inappropriate comparison -- the proportion of blacks hired to the proportion of blacks in the labor market as a whole. In any event, in the instant case it was obvious to both the jury and the Court, looking at the raw numbers, that Foot Locker had very few blacks who were managers both in the Washington area and across the nation, even without a expert statistical comparison. Both the jury and the Court have concluded that, despite this fact, the defendant did not discriminate against Mr. Green.
C. The Disparate Impact and Constructive Discharge Claims
The Court also concludes that the plaintiff failed to prove a case of discrimination through the doctrine of "disparate impact," by which the plaintiff identifies a particular hiring practice that statistically discriminates against blacks. It was agreed that Foot Locker's promotion decisions for manager were made primarily through the use of subjective criteria. While use of subjective criteria can of course hide racially discriminatory motives, the fact that an employer does not attempt to use objective criteria does not mean that it discriminates. In Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S. Ct. 2777, 101 L. Ed. 2d 827 (1988), the Supreme Court stated that, to establish a case of disparate impact in a subjective promotion situation, a plaintiff "must begin by identifying the specific employment practice" with an adverse statistical impact on blacks. Id. at 2788. The plaintiff in the instant case failed to identify any such specific employment practice; indeed, the plaintiff hardly mentioned the disparate impact argument in his papers supporting the Title VII claim.
The Court also concludes that Mr. Green was not constructively discharged from Foot Locker. To succeed on this claim, a plaintiff must show that the defendant deliberately made working conditions so intolerable that a reasonable person in the position would be forced to resign. E.g., Lake v. Baker, 662 F. Supp. 392, 404 (D.D.C. 1987). The work situation must be viewed from an objective viewpoint. Id.
Although Mr. Green maintained that he was distraught over his failure to get a management job, the Court concludes that the defendant had not discriminated against Mr. Green, nor has it been shown that the defendant did anything else in violation of law with respect to Mr. Green. The defendant did not make his workplace intolerable -- the only significant grievance Mr. Green had with Foot Locker concerned his failure to get a management position, hardly the sort of activity that may result in a constructive discharge.
D. Motion for a Mistrial or Judgment Notwithstanding the Verdict
The plaintiff also has moved for a mistrial or a judgment notwithstanding the verdict based on the decision of the Court not to give to the jury one of the plaintiff's proposed instructions. The plaintiff wanted the Court to tell the jury that
The Defendant contends that Mr. Green was not assigned to manage certain of the stores because of performance problems. If you find that Mr. Green had performance problems but that these problems were a direct result of Defendant's discriminatory behavior, Defendant may not use such performance as a legitimate basis for refusing to assign him to a store.