Daniel Anderson, Jr. v. Douglas & Lomason Co., Inc., Douglas & Lomason Co., Inc.

26 F.3d 1277, 1994 WL 245615

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 9, 1994
• Docket: 92-7554
• Status: Published

Opinions

EMILIO M. GARZA, Circuit Judge:

The plaintiffs brought a class action lawsuit against the Douglas & Lomason Co. (“D & L” or “the Company”) on July 5, 1985, alleging that D & L intentionally discriminated against blacks in its hiring, promotion, and termination practices. The district court, after a lengthy bench trial, entered judgment against the plaintiffs on their Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 claims. We affirm the district court’s decision.¹

I

D & L operates a plant in Cleveland, Bolivar County, Mississippi, that manufactures automobile parts. The plant employs approximately 657 people, 70% of whom are black. Applicants seeking entry-level positions with D & L need only meet certain minimal requirements, such as being at least eighteen years of age, physically able to perform the work, and able to read and write. The plaintiffs challenge certain hiring, promotion, and termination practices followed by D & L at the Cleveland plant after James Grizzard became plant manager in October 1982. The period between October 1982 and April 1986, when Grizzard ceased being manager at the Cleveland plant, was referred to at trial as “the Grizzard years.”

A

The plaintiffs first challenge the hiring practices adopted by Patty Haynes when she became personnel manager at the Cleveland plant in September 1981. Haynes’s hiring practices, which D & L followed throughout the Grizzard years, substantially differed from those of her predecessor, Harold Kee-ton. Keeton allowed employees to take applications for other persons, allowed people to submit applications twenty-four hours a day, took applications whether or not D & L was hiring, and kept all applications in his “active” file for one year. He generally interviewed two to three applicants for every available position. In making hiring decisions, Keeton looked at the applicant’s experience and attempted to hire those applicants with the most relevant work experience. Haynes, on the other hand, would not let employees take applications home, required all people who wanted to apply for employment to come to D & L’s plant, accepted applications only when D & L was hiring, and kept applications for six months. " She also accepted only one or two applications for every available position. Haynes testified that in making hiring decisions, she looked at the applicant’s relevant work experience and would hire “the best person for the job.”

During periods when D & L was hiring, Haynes permitted individuals who called the Company seeking information about possible employment to make appointments at which they could fill out an application. Haynes also accepted applications from individuals who came to the plant without appointments.² If a person called or came to the plant while D & L was hiring but after the applicant pool reached what Haynes considered to be the optimal size, plant guards told the individual either that D & L was not hiring or was not taking applications.³ During periods that D & L was not hiring, Haynes or the guards informed individuals inquiring about employment either that the Company was not taking applications or was not hiring. Thus, it was possible for individuals to be told that D & L was not taking applications both when the Company was and was not hiring.

D & L also hired employees in what can best be called “spurts.” Grizzard, after meeting with his department heads and supervisors, would determine whether D & L needed to hire additional workers. If D & L did need additional workers, Grizzard would so inform Haynes, who would begin taking applications. Haynes then would hire the number of employees sought by Grizzard. D & L rarely hired employees on a one-at-a-time or continuous basis and sometimes went months without hiring anyone.

D & L modified its application and hiring procedures in May 1985 by using the Mississippi State Employment Service (“MSES”) to provide a pool of applicants from which it could hire. When D & L needed to hire employees, it would notify the MSES. The MSES then would refer both regular and on-the-job-training (“OJT”) applicants to D & L.⁴ Haynes would interview the referred applicants and select new employees using separate job orders for the regular and OJT applicants hired. All hiring from the MSES referrals occurred on three separate spurts from May to September 1985. D & L has not hired any production workers since that time.

B

The plaintiffs next contend that D & L engaged in a pattern or practice of discrimination by refusing to promote blacks to leader and foreman positions.⁵ D & L had no written criteria or guidelines for promotions, and Grizzard did not post notices concerning available promotion opportunities. Instead, department supervisors selected leaders and foremen for their departments with little or no input from Grizzard. Although D & L did not have written criteria for promotions, the supervisors consistently applied the following subjective criteria when selecting leaders and foreman: attitude, work record, relevant work experience, leadership abilities, willingness to help other employees, commitment to D & L, and seniority. Thus, D & L’s promotion criteria are predominately of a subjective nature.

C

The plaintiffs also allege that D & L engaged in discriminatory practices by failing to provide blacks with temporary upgrades and permanent promotions to maintenance department positions. D & L employed a job-bidding process, as required by its collective bargaining agreement with the union representing D & L’s employees, whereby employees had to submit bids for available “craft” positions. D & L, however, sometimes gave production employees temporary upgrades to craft jobs on a short-term basis.⁶ D & L did not allow employees to bid on temporary upgrade positions, and the supervisors of the departments into which an employee would be temporarily upgraded determined whom to upgrade. The chosen employee’s supervisor, however, could block the upgrade if the employee was needed for production work.

D & L considered employees in the general maintenance and rack maintenance departments to hold craft positions. As such, D & L required employees seeking those jobs to participate in the bidding process and maintenance department supervisors selected production employees for temporary upgrades to maintenance positions. The primary duties of general maintenance employees included pipe welding and repairing broken machinery. Welding, however, was the primary function of rack maintenance employees. Consequently, D & L considered welding experience to be more important than seniority for the purposes of temporary upgrades and permanent promotions to maintenance department jobs.

D

The plaintiffs finally contend that D & L discharged employees, using the Company’s garnishment policy as a pretext, in retaliation for the employees filing charges with the Equal Employment Opportunity Commission (“EEOC”). D & L’s shop rules provided that the Company would discharge any employee who received four or more garnishments from, different creditors within a two-year period. Under this rule, only those garnishments not satisfied, withdrawn, or stayed within thirty days after D & L informed the employee of their existence counted against the four-garnishment limit. The two-year period began to run on the date D & L discussed the first garnishment with the employee and expired on the date that the thirty-day grace period for the fourth garnishment expired. Haynes, who was responsible for administering the garnishment policy, forgave all garnishments that D & L received before she became personnel manager.

II

The plaintiffs contend that the district court erred by analyzing the hiring and promotion class claims under the disparate treatment model instead of under the disparate impact model.⁷ We examine discrimination claims using the disparate impact model when employment practices are “facially neutral in their treatment of different groups but ... in fact fall more harshly on one group than another and cannot be justified by business necessity.” International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Although class action plaintiffs may challenge subjective or discretionary employment practices under' the disparate impact model, Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 2786-87, 101 L.Ed.2d 827 (1988), the use of subjective or discretionary decision-making does not itself create an inference of discriminatory conduct. Id. at 999, 108 S.Ct. at 2791 (plurality opinion). Instead,

“the plaintiffs burden in establishing a prima facie case [of discrimination] goes beyond the need to show that there are statistical disparities in the employer’s work force. The plaintiff must begin by identifying the specific employment practice that is challenged.... Especially in cases where an.employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”

Wards Cove Packaging Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (quoting Watson, 487 U.S. at 994, 108 S.Ct. at 2788-89). Thus, “[t]he disparate impact model applies only when an employer has instituted a specific procedure, usually a selection criterion for employment, that can be shown to have a causal connection to a class based imbalance in the work force.” Pouncy v. Prudential Ins. Co., 668 F.2d 795, 800 (5th Cir.1982); see also Wards Cove, 490 U.S. at 657-58, 109 S.Ct. at 2125 (noting that a plaintiff alleging a discriminatory impact claim must “specifically show[] that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites”).⁸

The district court refused to analyze the plaintiffs’ hiring and promotion claims using the disparate impact model because they did not identify a specific aspect of subjective decision-making by D & L that was shown to have any causal connection to the alleged class-based imbalance in D & L’s general or supervisory work force. The plaintiffs pointed only to D & L’s policy requiring individuals to fill out applications at the plant as a specific employment practice causing a class-based imbalance in the work force. This, however, does not justify analyzing the case under the disparate impact model because the plaintiffs did not demonstrate that the disparity they complain of was the result of the challenged policy. See Wards Cove, 490 U.S. at 657-58, 109 S.Ct. at 2125. Moreover, the plaintiffs identified no specific policy that allegedly caused a race-based imbalance in the number of persons who received promotions. Instead, the plaintiffs merely launched a wide-ranging attack on the cumulative effects of D & L’s employment practices. The disparate impact model is not the appropriate vehicle from which to launch such an attack. Pouncy, 668 F.2d at 800. Consequently, the district court did not err in refusing to analyze the plaintiffs’ claims using the disparate impact model.⁹ We thus review the plaintiffs’ claims under the disparate treatment model.

B

In a disparate treatment class action, the plaintiffs “must prove discriminatory intent and demonstrate more than ‘the mere occurrence of isolated or accidental or sporadic discriminatory acts.’ ” Carroll v. Sears, Roebuck & Co., 708 F.2d 188, 190 (5th Cir.1983) (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855). The plaintiffs must establish “by a preponderance of the evidence that racial discrimination was the [employer’s] standard operating procedure — the regular rather than the unusual practice.” Id.

The plaintiffs may establish a prima facie case of disparate treatment “by the use of statistics if a ‘gross’ disparity in the treatment of workers based on race is shown.” Id. However, “statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57. If statistical evidence is insufficient to establish discriminatory intent, the plaintiffs may bolster their case by introducing historical, individual, or circumstantial evidence. Bernard v. Gulf Oil Corp., 841 F.2d 547, 568 (5th Cir.1988). The employer then may rebut the plaintiffs’ prima facie case “by introducing proof that plaintiffs’ statistics are ‘inaccurate or insignificant’ or by providing a ‘non-discriminatory explanation for the apparently discriminatory result.’ ” Id. (citations omitted).

“[T]he ultimate determination of the existence of intentional discrimination is a question of fact, reviewed on appeal under the clearly erroneous standard.” Id. In determining whether a finding is clearly erroneous, we must give “due regard to the trial court to judge the credibility of the witnesses.” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

Ill

The plaintiffs argue that the district court erred in finding that D & L did not discriminate against blacks by restricting access to application forms. They argue that D & L unlawfully restricted access when Haynes refused to give employment applications to a number of blacks while D & L was seeking to hire new employees.

In attempting to prove a prima facie ease, the plaintiffs primarily relied on anecdotal evidence provided by class members. A number of individuals testified that they were unable to obtain applications from D & L. The district court found this anecdotal evidence unpersuasive because it was consistent with D & L’s general application policies. This finding is not clearly erroneous. See part VIII.A infra. Additionally, the black individuals turned away at the gate by D & L guards never saw D & L give any applications to whites seeking employment, and no D & L employee ever directed derogatory or racially-oriented epitaphs at them.¹⁰ Moreover, around the same time that D & L did not give these black individuals applications, D & L provided applications to many-other blacks. Finally, the record contains no evidence indicating that D & L’s application procedures affected potential black applicants any differently than potential white applicants.¹¹ Thus, the district court’s finding that D & L did not discriminate against blacks who were seeking applications is not clearly erroneous. See Falcon v. General Tel. Co., 815 F.2d 317, 322 (5th Cir.1987) (finding that an employer’s application procedures were not discriminatory where no evidence was introduced to prove that the procedures affected non-whites any differently than whites).

IV

The plaintiffs contend that statistical and anecdotal evidence established that D & L discriminated against blacks when hiring production workers during the Grizzard years. In comparing the number of blacks hired to the number of blacks who applied for production jobs, however, the district court found no evidence of discriminatory intent.

The job of production worker — an unskilled, entry-level position — required only that applicants be at least 18 years old, be able to read and write, and be able to bend, lift, and stoop. During the Grizzard years, D & L hired 482 production workers — 46.5% of those hired were black. Black employees constituted more than 70% of D & L’s general work force, and more than 80% of the production work force, during the Grizzard years. In Bolivar County, where D & L’s plant is located, 1980 census data indicates that the overall labor force was 51.8% black, with blacks constituting 70.1% of all operators, laborers, and fabricators.

The plaintiffs first argue that the district court erred in crediting D & L’s statistical analysis of its hiring practices during the Grizzard years. The plaintiffs contend that because D & L’s statistical analysis was fatally flawed, the district court should have relied on seven sets of statistical data presented by their expert.¹² D & L, not surprisingly, finds fault with each of plaintiffs’ seven standards and contends that the district court correctly relied upon the standard proposed by D & L’s expert.

Where plaintiffs use statistical evidence to challenge an employer’s hiring practices, that evidence, to be probative of discriminatory intent, must compare the relevant portion of the employer’s work force with the qualified population in the relevant labor market. EEOC v. Olson’s Dairy Queens, Inc., 989 F.2d 165, 168 (5th Cir.1993). The dispute between the plaintiffs and D & L revolves around how to properly define the “relevant labor market.” D & L contends that the labor market should be defined using an “applicant flow” analysis— i.e., arguing that D & L’s available labor force is best determined by examining the applications of those persons who actually sought employment with the Company. The plaintiffs, on the other hand, contend that an applicant flow analysis should not be used here because some of the applications submitted during the Grizzard years were not available for examination.¹³ Thus, the plaintiffs argue that any one of their seven different methods of measuring the relevant labor market was superior to D & L’s applicant flow analysis.¹⁴

Actual applicant flow figures are the preferred method by which to measure an employer’s hiring practices and performance. Olson’s Dairy Queens, 989 F.2d at 168; Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1025 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982); Hester v. Southern Ry. Co., 497 F.2d 1374, 1379 (5th Cir.1974); see also Mister v. Illinois Cent. Gulf R.R. Co., 832 F.2d 1427, 1435 (7th Cir.1987) (“Statistical analysis of the actual applicants has the advantage of self-selection: the study examines how the employer actually treated people who wanted the job. Applicant studies are preferable as a rule because Title VII governs the treatment of applicants.”). “Other statistical measures are necessarily imperfect in differing ways and varying degrees. The best the court can do is to accept what figures are available; allow for imperfections, skewing factors, and margins of error; and then take the figures for what they are worth. Sometimes this is much, sometimes little.” Phillips, 637 F.2d at 1025. Thus, when applicant flow figures are flawed or otherwise unavailable, we have allowed plaintiffs to use other statistical measures to establish a prima facie case of discrimination. See, e.g., id. (noting that actual applicant flow figures were unavailable because the employer did not identify applicants by race); Robinson v. Union Carbide Corp., 538 F.2d 652, 657-58 (5th Cir.1976) (upholding the district court’s refusal to employ an applicant flow analysis), modified in part on other grounds, 544 F.2d 1258 (5th Cir.1977).

D & L’s statistical expert, Dr. Joan Haworth, testified that, according to an applicant flow analysis, D & L did not discriminate in hiring black applicants. Haworth found that from April 1984 to January 1985, blacks constituted 46.7% of all applicants. She then compared this figure to the percentage of applicants hired by D & L during the Grizzard years who were black — 45.5%— and determined that the difference was not statistically significant.¹⁵ Thus, Dr. Haworth concluded, D & L did not engage in discriminatory hiring practices.

The plaintiffs challenge Dr. Ha-worth’s analysis on several grounds. They first assert that D & L did not keep all applications from the April to October 16 period, thus skewing the analysis so that the number of black applicants from that period was understated. As evidence of D & L’s selective retention of applications, the plaintiffs point to the large difference between the number of applications submitted by blacks during the April to October period and the October 17 to January period.¹⁶ The district court found, however, that one explanation for the large increase in applications submitted by blacks during the latter period was that Oliver Robinson, a black D & L employee, had begun a campaign to encourage blacks in Bolivar County to apply for employment at D & L and file discrimination charges against D & L with the EEOC.¹⁷ This finding is not clearly erroneous.

As additional evidence that D & L failed to retain applications, the plaintiffs contend that the number of applications retained by D & L indicates that Haynes accepted approximately eight and one-half applications for every seven positions filled during the pre-suit period, but accepted about ten applications for every seven positions filled during the post-suit period. The plaintiffs contend that the difference demonstrates that D & L did not retain all applications from the April to October period. Haynes, however, testified that she believed she kept all the applications from the April to October period, although she ultimately was unsure whether she had discarded some applications. Moreover, Haworth testified that while she believed she had all the relevant applications, she nevertheless had a “reasonably large amount” of the applications for the purposes of her analysis. The district court resolved this dispute by finding that D & L did retain all applications pertaining to the relevant period, and we cannot say that this resolution was clear error. See Trevino v. Holly Sugar Corp., 811 F.2d 896, 901 (5th Cir.1987) (finding that the district court did not err in accepting an employer’s statistical analysis because, while it was flawed, the plaintiffs’ analysis suffered from more serious deficiencies); Nash v. City of Houston Civic Ctr., 800 F.2d 491, 497 (5th Cir.1986) (noting that where there are competing yet permissible views of the evidence, we must affirm the district court’s finding).

The plaintiffs next argue that even if the applicant flow analysis was the best standard by which to measure the labor pool available to D & L, the district court erred in accepting Dr. Haworth’s analysis because it was based on samples too small to allow for a meaningful statistical analysis. When statistics are based on small sample sizes, the plaintiffs contend, the presence or absence of statistical significance is not a rehable indicator of discrimination. Whether or not a sample is too small to yield statistically meaningful results, however, must be determined on a case-by-case basis. Watson, 487 U.S. at 995 n. 3, 108 S.Ct. at 2789 n. 3; Rendon v. AT & T Technologies, 883 F.2d 388, 397 (5th Cir.1989). The district court found Dr. Ha-worth’s analysis to be more credible and more persuasive than the seven analyses offered by the plaintiffs’ expert. We find that the district court did'not err in crediting D & L’s statistical analysis, which demonstrated that D & L did not engage in discriminatory hiring practices, over the analyses offered by the plaintiffs.¹⁸

2

The plaintiffs further argue that the district court erred in accepting Haworth’s analysis of D & L’s hiring practices during the period in which the Company exclusively relied upon MSES to provide acceptable applicants. In relying on Dr. Haworth’s analysis, the district court found that her job-order-by-job-order analysis was more persuasive because it more closely reflected the actual process through which D & L hired employees. The plaintiffs’ analyses, tout au con-traire, grouped the six different job orders into one set of statistics.¹⁹

D & L placed job orders with MSES three times during the Grizzard years. On each occasion, D & L sought two types of referral — one order requested regular referrals and one order requested OJT referrals. Dr. Haworth compared the percentages of blacks and whites hired by D & L for each separate job order and found that in only one job order did the difference between the actual and expected number of blacks hired exceed two standard deviations.²⁰ The district court found, in light of the record as a whole, that this single statistical disparity did not establish a prima facie ease of discriminatory intent. We find that the district court’s conclusions regarding the statistical analyses of D & L’s hiring practices are not clearly erroneous. See Lewis v. NLRB, 750 F.2d 1266, 1276 n. 17 (5th Cir.1985) (noting that a single statistically significant disparity “by no means commands an inference of discrimination”).

The plaintiffs attempted to buttress their statistical evidence with anecdotal evidence regarding class members whom D & L allegedly did not hire because of their race. While Title VII plaintiffs may use evidence regarding individual instances of discrimination to bolster their class claim, Bernard, 841 F.2d at 568, the district court found that D & L did hot discriminate in refusing to hire the individuals at issue. This finding is not clearly erroneous. See part VIII.B infra. Accordingly, the plaintiffs’ anecdotal evidence, combined with their statistical evidence, did not establish a prima facie case of disparate treatment.

V

The plaintiffs introduced statistical, historical, and anecdotal evidence in an attempt to prove that D & L unlawfully discriminated against blacks when promoting employees to leader and foreman positions. The plaintiffs’ statistical evidence regarding the promotion claim compared the number of blacks promoted to leader and foreman positions during the pre-suit Grizzard years with the percentage of blacks present in D & L’s work force; the plaintiffs also sought to compare the percentage of promotions received by blacks during the pre-suit Grizzard years with the respective percentages for the pre-Grizzard and post-suit periods. D & L, on the other hand, introduced statistics comparing the number of blacks holding leader and foreman positions to the number of blacks holding supervisory positions in Bolivar County. The district court ultimately determined that D & L’s statistical analysis was the better one and therefore credited it. Moreover, the district found that the historical, anecdotal, and other circumstantial evidence submitted by the plaintiffs did not establish that D & L engaged in a pattern or practice of discrimination. The plaintiffs, of course, challenge these determinations.

A court may infer that an employer engaged in racial discrimination when promoting workers if statistics, when comparing the number of non-whites and whites promoted, demonstrate a gross statistical disparity. Lewis, 750 F.2d at 1271. Statistical evidence, however, must be meaningful in light of all the surrounding facts and circumstances. Pouncy, 668 F.2d at 1275. “In establishing an inference of discrimination from statistical evidence, the ‘required comparison [is] to a qualified pool of employees ;presumptively eligible for promotion.’ ” Lewis, 750 F.2d at 1275 (quoting Pouncy, 668 F.2d at 803).

The plaintiffs introduced statistical evidence comparing the percentage of leader and foreman promotions given to blacks during the Grizzard years — 23%—to the percentage of black employees in D & L’s production work force — 80%. According to the plaintiffs, these statistics indicated a pattern of discrimination in the promotion of D & L employees to leader and foreman positions. The plaintiffs contend that this comparison is appropriate because D & L selected leaders and foremen from within the organization. The district court rejected the plaintiffs’ approach as being overbroad because not everyone in D & L’s production work force was qualified for promotion. The district court further found that because D & L had hired individuals from outside D & L’s work force to be foremen and supervisors, the plaintiffs’ approach was too narrow because it excluded individuals outside D & L’s production work force who were qualified to be leaders and foremen.²¹ We agree that the plaintiffs made the forbidden assumption that all D & L employees were equally qualified for promotion. See Lewis, 750 F.2d at 1275 (rejecting the plaintiffs’ analysis because they brought into their comparison “employees who are not to be considered for promotion”); Pouncy, 668 F.2d at 803 (refusing to infer that an employer discriminated against black employees in awarding promotions simply because the plaintiffs demonstrated that the percentage of black employees promoted was “far less” than the percentage in black employees in the employer’s work force). Consequently, the district court did not err in finding the plaintiffs’ statistical evidence for leader and foreman promotions unpersuasive.

The plaintiffs also introduced statistical evidence showing that blacks constituted 64% of persons promoted to leader and foreman positions during the pre-Grizzard and post-suit periods, but only 23% of those promoted during the pre-suit Grizzard period. The plaintiffs also note, however, that during the pre-Grizzard period, blacks apparently received favorable treatment with regard to promotions: whites worked on average for 71.8 months before promotion while blacks worked on average only 43 months. See also note 29 infra. Because of the bias in favor of blacks during the pre-Grizzard period, the district court found it unhelpful to compare statistics from that period with statistics from the post-Grizzard periods. Cf. Lewis, 750 F.2d at 1275 n. 14 (noting that an employer’s affirmative action program could skew statistical analyses in disparate treatment eases). Because D & L was not required to continue the preferential treatment given black employees during the pre-Grizzard period, see United Steelworkers v. Weber, 443 U.S. 193, 205-06, 99 S.Ct. 2721, 2728, 61 L.Ed.2d 480 (1979), the district court thus did not err in disregarding the plaintiffs’ statistical evidence regarding the pre-Griz-zard period.

In finding no evidence of discriminatory conduct, the district court accepted D & L’s statistical evidence, which compared the percentage of black supervisors at D & L to the percentage of black supervisors county-wide.²² We believe that the district court erred in comparing the total number of black supervisors at D & L to the number of black supervisors county-wide. An employer cannot escape liability under Title VII by demonstrating that, at the bottom line, minorities are represented in supervisory capacities at non-discriminatory levels. See Wards Cove, 490 U.S. at 655-57, 109 S.Ct. at 2124; Connecticut v. Teal, 457 U.S. 440, 450, 102 S.Ct. 2525, 2532, 73 L.Ed.2d 130 (1982). Thus, the relevant comparison is between the number of blacks promoted during the pre-suit Griz-zard years and the number of blacks that statistically should have been promoted in the absence of any discrimination.²³

The plaintiffs have demonstrated that blacks received 23% of all promotions during the pre-suit Grizzard years. At the same time, blacks' constituted 19.1% of the supervisors in production-related occupations in Bolivar County.²⁴ The district court, because blacks were represented in D & L’s work force in a ratio higher than statistically predicted,²⁵ inflated the 19.1% figure to 25% — i.e., blacks statistically should have received 25% of all promotions to leader and foreman positions. Because the number of blacks who received promotions is not statistically different from the number of blacks expected to receive promotions,²⁶ the district court did not err in failing to find an inference of disparate treatment with regard to D & L’s promotion practices. See Terrell v. University of Tex. Sys. Police, 792 F.2d 1360, 1362 n. 3 (5th Cir.1986) (“When the judgment of the district court is correct, it may be affirmed on appeal for reasons other than those given or relied on below.”), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987).

The plaintiffs contend that because D & L based its promotion decisions on subjective criteria, D & L could have failed to promote blacks for discriminatory reasons. The district court rejected the plaintiffs’ argument. A promotional system that is based upon subjective criteria is not “discriminatory per se.” Page v. U.S. Indus., Inc., 726 F.2d 1038, 1046 (5th Cir.1984); see also Watson, 487 U.S. at 990, 108 S.Ct. at 2786 (“[A]n employer’s policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct.”). However, “promotion systems utilizing subjective evaluations by all white supervisors” can be evidence of discrimination in disparate treatment cases. Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 827 (5th Cir.1982); Lewis, 750 F.2d at 1276.

This case is distinguishable from our prior holdings, however, because the D & L supervisors who evaluated and promoted employees were both black and white. As the district court found,

[w]hile the subjectivity of the criteria of attitude and commitment could result in racial disparity in the potential for promotion, it is clear from the record evidence that the individuals recommended or considered for promotion included black individuals recommended by white foremen and supervisors, white individuals recommended by black foremen and supervisors, and individuals recommended by both.

Record Excerpts at 90; cf. St. Mary’s Honor Ctr. v. Hicks, — U.S.-,-, 113 S.Ct. 2742, 2751, 125 L.Ed.2d 407 (1993) (noting that evidence in a hiring case tending to negate a finding of discrimination includes the fact that the hiring officer is of the same minority group as the plaintiff). The district court’s finding is supported by the evidence.²⁷ Accordingly, the district court did not err in refusing to find that the subjective component of D & L’s promotion policy constituted evidence of discriminatory intent.²⁸ See Bernard, 841 F.2d at 547 (holding that an employer’s unwritten and subjective standards for promotion were not discriminatorily applied).

The plaintiffs introduced evidence of the comparative seniority of white and black employees prior to promotion to support their argument that D & L was discriminating against blacks by promoting less senior whites.²⁹ The district court rejected this evidence because it ignored that more senior black employees turned down several promotions later given to less senior white employees.³⁰

The average length of time between promotions may be relevant in proving discrimination by an employer. See Pouncy, 668 F.2d at 804. However, we agree with the district court that the statistics submitted by the plaintiffs are fatally flawed because they overlook the black employees who turned down promotions later offered to white employees. See Trevino, 811 F.2d at 902 (finding that the plaintiffs’ statistics demonstrating a “significant disparity between Hispanics and non-Hispanies for the total elapsed time from the date of hire” to promotion was “not compellingly persuasive evidence” of discrimination). For example, Robert LaPresto, a white employee, was promoted to leader after being employed by D & L for approximately four months. However, the position was first offered to four black employees who rejected it. D & L promoted James Haney, another white employee, to leader nine months after hiring him, but only after two black employees first declined the offer of promotion. Six black employees rejected a promotion given to white employee Randy Daniels, whom D & L promoted to leader less than two months after his employment began.³¹ We also note that during the post-suit period, during which blacks received 64% of the promotions to leader and foreman and about which the plaintiffs do not complain, blacks worked on average 154.9 months before promotion while whites worked only 51 months. This comparison demonstrates that statistics regarding the relative seniority of workers promoted by D & L cannot support a finding of disparate treatment. Cf. Pouncy, 668 F.2d at 803 (finding that a discrepancy between the mean salaries of black and white employees could be explained by “any number of nondiscriminatory factors,” including different skill levels, previous training, and experience). Consequently, like the district court, we refuse to infer from this evidence that D & L’s promotion practices unlawfully disfavored black employees.

The district court considered evidence put forward by the plaintiffs with regard to alleged individual instances of discrimination and concluded that D & L gave legitimate reasons why it did not promote most of the individuals at issue. The district court also found that D & L did not promote the other individuals simply because they were overlooked or did not come to the attention of management.³² See part VIII.C infra. Thus, the anecdotal evidence did not, as the plaintiffs assert, support a finding that D & L engaged in a pattern or practice of discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 1097, 67 L.Ed.2d 207 (1981) (“The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability....”); Odom v. Frank, 3 F.3d 839, 849-50 (5th Cir.1993) (noting that the perpetuation of a “good old boy” network does not amount to racial discrimination). Consequently, the district court did not clearly err in concluding that the plaintiffs’ anecdotal evidence did not support their claim of disparate treatment. See Lewis, 750 F.2d at 1276-77 (finding that anecdotal evidence supported a finding only of isolated instances of discrimination).

E

The plaintiffs further contend that the district court erred in rejecting their attempt to buttress their statistical evidence of discrimination with evidence regarding D & L’s history of discrimination. The plaintiffs argued that D & L’s supervisors both used racially derogatory language in speaking to black employees and physically abused them, without any repercussions from upper management. After reviewing the anecdotal evidence presented by the plaintiffs, the district court concluded that D & L at no time encouraged or condoned any mistreatment of black employees by supervisors. Specifically, the district court found that

[t]he sum total of the evidence with regard to these allegations of what constitutes a claim of hostile environment in the form of disparate treatment of black employees amounts, at best, to proof of isolated acts of the use of vulgar or racially derogatory language by no more than two or three company officials and a single instance of physical contact between a company official and a single black employee, all occurring over a period of three or more years. What is also abundantly clear is that when reported to the appropriate company officials, every complained of incident was immediately followed by affirmative company action in the form of apologies to the employees involved, counseling of the managers involved, and/or discipline of those 'management officials. Moreover, the plaintiffs’ allegations relate to the time period after the arrival of the Plant Manager James Grizzard, with there being not a scintilla of evidence that Grizzard participated in or condoned any of the complained of acts, with the exception of possibly two instance of the use of vulgar language, both of which, under the undisputed circumstances, the court finds to have been justified, and one, about which the union filed a grievance, for which Mr. Grizzard apologized.³³

Record Excerpts at 129-30. The district court further found that some of the individuals who alleged that D & L officials used racially derogatory language were not credible.

It is within the province of the district court to resolve credibility disputes. Anderson, 470 U.S. at 564, 105 S.Ct. at 1504. Moreover, the “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” is not indicative of a pattern or practice of racial discrimination in violation of Title VII. Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). After undertaking an independent review of the record, we conclude that the district court did not err in finding that the evidence demonstrated, at best, only isolated instances of racially motivated acts insufficient to establish class-wide disparate treatment.³⁴ See Bernard, 841 F.2d at 569 (holding that the anecdotal testimony of the plaintiffs’ witnesses did not establish class-wide disparate treatment).

VI

The class plaintiffs finally argue that the district court erred in finding that D & L did not discriminate against blacks when giving temporary upgrade assignments to general maintenance and rack maintenance positions.³⁵ They contend that the statistical evidence demonstrated a gross disparity in the treatment of white and black employees, thus establishing a prima facie case of discrimination.³⁶ It does not appear that the plaintiffs presented any expert testimony explaining the meaning or statistical significance of this evidence. Consequently, our review of the evidence has been unduly hampered by the plaintiffs’ failure to establish whether their statistics were meaningful or significant in fight of the particular facts of this case. See Teamsters, 431 U.S. at 340, 97 S.Ct. at 1857 (noting that the “usefulness [of statistics] depends on all of the surrounding facts and circumstances”). Nevertheless, after closely reviewing the plaintiffs’ evidence, we conclude that the plaintiffs failed to establish a prima facie case of discrimination.

Eleven employees, three of whom were black, received temporary upgrades to general maintenance jobs during the Grizzard pre-suit period. During this period, two white employees — William Myers and James Partridge — received 68% of the total temporary-upgrade hours. By comparison, two black employees — James Triplett and Alfred Kemp, Sr. — received approximately 88% of all temporary-upgrade hours during the pre-Grizzard period; in the post-suit period, one white employee — Robert Haynes, Jr. — and one black employee — Arthur Perry — received approximately 94% of all temporary-upgrade hours. The plaintiffs introduced no evidence demonstrating that other individuals desired or were qualified for temporary-upgrade positions.³⁷ Consequently, we have nothing with which to compare the plaintiffs’ statistics. As a result, the statistics are meaningless.³⁸

Other evidence supports the district court’s determination that D & L did not discriminate in giving employees temporary upgrade assignments. For example, the percentage of blacks in permanent craft positions during the Grizzard years ranged from 66.7% to 73.7%. During the immediately preceding years, blacks comprised 67.1% to 63% of the employees in craft positions.³⁹ Moreover, D & L during the Grizzard years awarded seven out of the eight permanent promotions to craft positions to black employees. Moreover, Alfred Kemp, one of the black employees who received no temporary upgrades during the Grizzard pre-suit period but did during both the pre-Grizzard and post-suit periods, testified unequivocally that D & L was a good place to work and always treated him fairly.⁴⁰ We also note the lack of evidence regarding the number of employees, black and white, who received temporary upgrades to craft positions in non-maintenance departments. See Wards Cove, 490 U.S. at 651-53, 109 S.Ct. at 2122 (noting that plaintiffs should not unnecessarily segment the employer’s work force in an attempt to prove discrimination). We therefore agree with the district court’s conclusion that D & L did not discriminate in selecting employees for temporary upgrade assignments in the rack maintenance and general maintenance departments.

VII

The statistical evidence presented by the plaintiffs does not present the gross statistical disparity that, when considered in light of the entire record, would require a reversal of the district court’s ultimate findings that no pattern of discrimination existed with regard to D & L’s hiring and promotion practices. Nor is the historical and anecdotal evidence introduced by the plaintiffs sufficient to support a finding of disparate treatment. Accordingly, we AFFIRM the district court’s judgment on the class claims.

VIII

The district judge rejected the individual claims of various plaintiffs challenging the treatment they received pursuant to D & L’s hiring, promotion, and termination policies. “In a disparate treatment case involving an individual, the plaintiff initially has the burden of showing a prima facie case of discrimination.” Carroll, 708 F.2d at 195. A plaintiff meets this initial burden by demonstrating

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applications] from persons [who possessed the plaintiff’s] qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). “Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. If the plaintiff establishes a prima facie case of discrimination, “the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, non-discriminatory reason.” Carroll, 708 F.2d at 195. If the employer “carries this burden of production, the presumption raised by the prima facie case is rebutted” and drops from the ease. Burdine, 450 U.S. at 255 & n. 10, 101 S.Ct. at 1095 & n. 10. “The plaintiff then has ‘the full and fair opportunity to demonstrate,’ through presentation of his own case and through cross-examination of the defendant’s witnesses, ‘that the proffered reason was not the true reason for the employment decision,’ and that race was.” St. Mary’s, — U.S. at-, 113 S.Ct. at 2747 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). The plaintiff at all times bears the burden of persuading the court that he or she was the victim of intentional discrimination.⁴¹ Id. — U.S. at-, 113 S.Ct. at 2747-48.

A number of individual plaintiffs claim that D & L unlawfully discriminated against them on the basis of race by refusing to give them applications during the Grizzard years — October 1982 through April 1986. The district court found that some of the plaintiffs were not credible because, during the time they allegedly could not obtain applications, other blacks were given applications.⁴² Furthermore, the district court found that D & L properly refused to give many of the plaintiffs applications because the Company either was not hiring when the plaintiffs were seeking applications or was hiring but had already received a sufficient number applications for the positions to be filled. The district court’s findings are not clearly erroneous. An extensive review of the record has convinced us that it contains no evidence indicating that the plaintiffs were not given applications because of their race.⁴³ The only evidence supporting the plaintiffs’ allegations that D & L refused to give blacks employment applications is the plaintiffs’ unsupported assertions concerning their collective belief that D & L discriminated against blacks.⁴⁴ Under D & L’s application policy, see part I.A supra, there were legitimate, nondiscriminatory reasons why D & L did not give applications to the plaintiffs. Because the plaintiffs failed to demonstrate that race was the true reason for D & L’s refusal to give them applications, we uphold the district court’s finding that D & L did not discriminate against the plaintiffs. See Odom v. Frank, 3 F.3d 839, 849 (5th Cir.1993) (holding that anecdotal evidence and mere speculation will not support a finding that an employer followed an unwritten “policy” of discrimination); Carroll, 708 F.2d at 195-96 (noting that the mere suspicion of discrimination is not sufficient to establish disparate treatment).

Plaintiffs Chris Harris and Bobbie Sharp contend that D & L unlawfully discriminated against them on the basis of race by refusing to hire them for production positions. The district court found that D & L did not hire Harris and Sharp for valid, race-neutral reasons. For example, Harris, who applied when D & L was hiring only for the night shift, indicated on her application that she attended afternoon and evening classes at a local college. Haynes testified that she believed she did not hire Harris because of the conflict between Harris’s classes and the shift for which she was hiring. The district court noted that although Haynes’s explanation was not absolute, no evidence suggested that race affected Haynes’s decision not to hire Harris. This finding is not clearly erroneous. See Odom, 3 F.3d at 845 (“Although Strader’s testimony ... was less than absolute, it constituted at least some evidence. More significantly, it was uncontradieted. As Odom adduced no evidence favorable to his position ..., we are compelled to accept Strader’s legitimate, non-discriminatory ex-planation_”); cf. St. Mary’s, — U.S. at -n. 5, 113 S.Ct. at 2751 n. 5 (“The notion that every reasonable employer keeps ‘personnel records’ on people who never became personnel, showing why they did not become personnel (ie., in what respects all other people who were hired were better) seems to us highly fanciful — or for the sake of American business we hope it is.”). Likewise, Sharp failed to adduce any evidence indicating that D & L unlawfully considered her race when deciding not to hire her. Moreover, at the same time Harris and Sharp were not hired, D & L hired other blacks as production workers. Thus, the district court’s finding that D & L did not discriminate against her is not clearly erroneous. See Carroll, 708 F.2d at 195 (noting that the mere suspicion of discrimination does “not establish disparate treatment”).

Plaintiffs Nathaniel Cannon, Michael O’Neal, and Gregory Townsend contend that D & L unlawfully discriminated against them by refusing to rehire them after they had been laid off.⁴⁵ The district court found that these plaintiffs adduced no evidence indicating that race was a factor in D & L’s decision not to rehire them. In fact, the record indicates that D & L rehired twenty-two blacks, and only fourteen whites, during the Griz-zard years. We hold that the district court did not err in finding that D & L did not rehire Cannon, O’Neal, and Townsend because of legitimate, race-neutral reasons. See Carroll, 708 F.2d at 195 (noting that the mere suspicion of discrimination does “not establish disparate treatment”).

Plaintiffs Moses Coleman, Richard Grant, Earnest Hall, Robert Melvin, Alexander Smith, and Kimroy Williams claim that D & L, in failing to promote them to leaders and foremen, discriminated against them on account of their race. The district court found that the plaintiffs failed to demonstrate that race played any part in D & L’s failure to promote them. This finding is supported by the record evidence.

In selecting leaders and foremen, D & L considered the employee’s attitude, work record, work experience, leadership abilities, willingness to help other employees, commitment to the Company, and seniority to be very important. The record reflects that each plaintiff was lacking in one or more of these attributes during the Grizzard years. See Davis v. Chevron U.S.A, Inc., 14 F.3d 1082, 1087 (5th Cir.1994) (noting that to establish a prima facie case of discrimination, an applicant must be qualified for the sought position at the time he or she applies for it). For example, Gerald Bardwell, Coleman’s supervisor, stated that Coleman, when temporarily filling in for foremen, was unable to handle the job and had employees “goofing off on him.” Howard Watson testified that department supervisors never recommended Coleman for promotion. Additionally, both Grant and Hall had both turned down previous offers of promotion to leader positions, indicating a lack of commitment to D & L.⁴⁶ Charlie West, a black supervisor, testified that he did not consider Grant for one promotion because he did not know Grant. Byron Kyle, a department superintendent, testified that Grant did not have any leadership abilities.⁴⁷ Richard Williams, a black supervisor, and Howard Watson testified that Melvin and Kimroy Williams did not show any interest in being promoted and did only enough work to get by, thereby demonstrating little desire for advancement and no commitment to the Company.⁴⁸ Tommy Lucas, a foreman in the paint department and former union steward, testified that Smith had an attitude problem.

The plaintiffs failed to demonstrate that their race played any role in D & L’s failure to promote them. See Carroll, 708 F.2d at 196 (rejecting a claim that an employee was diseriminatorily denied promotion because his supervisors testified that his attitude and lack of dependability were the actual reasons); Pouncy, 668 F.2d at 795 (rejecting an employee’s promotion claim because the employee did not possess the initiative or the ability to communicate with and train his coworkers). At most, the plaintiffs proved that D & L may have overlooked one or more of them when considering potential candidates for promotion. Such a showing is insufficient to prove discrimination. Cf. Odom, 3 F.3d at 849-50 (noting that the perpetuation of a “good old boy” network does not amount to racial discrimination). Accordingly, the plaintiffs failed to prove that D & L did not promote them on account of their race.

Daniel Anderson, Jr. and Tommy Hardy argue that D & L refused to give them temporary upgrade assignments in the general maintenance or rack maintenance departments because of their race. Welding experience was necessary for many of the tasks performed by general maintenance employees, and welding was the primary duty of rack maintenance employees. The district court found that D & L did not give Anderson and Hardy temporary upgrade assignments because they lacked the necessary experience to work in the maintenance departments.

Both Anderson and Hardy testified that they had only a limited amount of welding experience.⁴⁹ Moreover, they presented no evidence demonstrating that what little welding experience they had qualified them to perform the duties of general and rack maintenance employees. Finally, they introduced no evidence suggesting that any white employee who received an upgrade was unqualified (or less qualified than the plaintiffs). Because the district court’s finding that Anderson and Hardy were not qualified to receive temporary upgrades is not clearly erroneous, the district court’s conclusion that Anderson and Hardy failed to establish a prima facie ease of discrimination is supported by the evidence.

Anderson further contends that D & L discriminated against him by not permanently promoting him to the rack maintenance department. Anderson and James Bruce, a white employee, submitted bids for a permanent rack maintenance position. Both Anderson and Bruce were interviewed. The notes of the interviewer indicated that he considered Anderson’s limited welding experience, Bruce’s more extensive welding experience, Anderson’s “poor attendance,” and Bruce’s “very good” attendance in determining who to recommend for the promotion.⁵⁰ Moreover, the notes also indicate that a black employee with more seniority than Bruce turned down the job. Thus Anderson did not establish a prima facie case of discrimination because he was not qualified for the promotion which he sought.⁵¹ Moreover, even if Anderson did establish a prima facie case, D & L demonstrated by a preponderance of the evidence that it rejected Anderson for legitimate reasons. Accordingly, the district court properly found that Anderson failed to demonstrate that he was the victim of discrimination.

Four plaintiffs — Belinda Cox, Robert Haywood III, Synovia Jackson and Jesse Overstreet — contend that the district court erred in finding that D & L did not discharge black employees under its garnishment policy, see part I.D supra, in retaliation for filing EEOC charges.⁵² To establish a prima facie case of retaliatory discharge under § 2000e-3(a) of Title 42,⁵³ a plaintiff must demonstrate (1) that he engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link between participation in the protected activity and the adverse employment decision exists. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992). Once a plaintiff establishes a prima facie case, the employer bears the burden of articulating some legitimate, nondiscriminatory reason for its action. Id. If the defendant does so, the employee bears the ultimate burden of showing that the reasons given by the employer were a pretext for retaliation. Id.

The parties appear to agree that the plaintiffs passed the first two prongs of the retaliation test, as they filed EEOC charges and subsequently were terminated from their positions.⁵⁴ They disagree, however, about the causal link between their terminations and the filing of the EEOC charges. The plaintiffs argue that but for the filing of the EEOC complaints, they would not have been fired. D & L counters by arguing that there is no causal connection between the plaintiffs’ terminations and their protected activities. D & L further argues that even if the plaintiffs did establish a prima facie case of retaliation, it articulated a legitimate, nondiserimi-natory reason for their discharges — violations of the garnishment policy.

The district court found that the plaintiffs failed to show a causal connection between the filing of the charges and their terminations. The district court further found that the evidence demonstrated legitimate, nondiscriminatory reasons for the plaintiffs’ terminations — violations of the garnishment policy. These findings are not clearly erroneous. It is undisputed that the plaintiffs did in fact violate the garnishment policy.⁵⁵ Because the penalty for such a violation was termination, D & L properly terminated the plaintiffs. See Lewis, 750 F.2d at 1279 (holding that when some evidence substantiates a claim of retaliation while other evidence demonstrates that the employer acted for innocent reasons, the district court did not clearly err in rejecting the retaliation claim).

The plaintiffs argue their terminations are causally related to their protected activity because D & L did not discharge other employees who violated the garnishment policy if those employees or their relatives had not filed EEOC charges. The plaintiffs point to seven individuals whom they argue should have been discharged under the policy but were not. Six of the individuals named by the plaintiffs, however, did not violate the garnishment policy.⁵⁶ Moreover, the mere fact that one individual violated the policy without being fired, does not by itself amount to race-based discrimination. See Lewis, 750 F.2d at 1278 n. 19 (finding that irregular exceptions to a valid policy did not support a retaliation claim); cf. Odom v. Frank, 3 F.3d 839, 850 (5th Cir.1993) (noting that “misfeasance, malfeasance, or nonfeasance — without nexus to ... race— is not actionable”). Furthermore, contrary to the plaintiffs’ contention, the evidence indicates that D & L discharged under the garnishment policy other black employees who had not filed EEOC claims.⁵⁷ Additionally, the plaintiffs presented no evidence suggesting that D & L did not discharge white employees who violated the policy. Consequently, the district court did not err in finding that no causal link existed between the filing of the EEOC charges and the plaintiffs’ discharges. We therefore uphold the district court’s finding that D & L did not discharge the plaintiffs in retaliation for their participation in protected activity.

IX

The plaintiffs failed to produce sufficient evidence demonstrating that D & L engaged in any race-based discrimination. Accordingly, we AFFIRM the judgment of the district court in all respects.

1 . The plaintiffs in this case earlier appealed the decision of the district court denying their application for preliminary injunctive relief that would have regulated the hiring practices of D & L. We affirmed the district court's decision to deny a preliminary injunction in Anderson v. Douglas & Lomason Co., 835 F.2d 128 (5th Cir.1988).

2 . Because of the large number of employees involved in deciding when D & L needed to hire employees, news that D & L was hiring quickly spread throughout the Company’s general work force. For example, on one occasion individuals came to the plant to fill out applications even before Grizzard told Haynes that D & L would be hiring additional employees.

3 . A security fence, gate, and guardhouse prevented unauthorized persons from entering the plant. Haynes instructed the guards to allow people to enter the plant to fill out applications only when D & L was hiring and also gave the guards the names of those individuals with appointments to fill out applications.

4 .D & L received financial benefits from the state’s on-the-job training program for every OJT applicant hired.

5 . D & L promotes production employees to leaders so that it can evaluate their performance and potential to become foremen. D & L either selects foremen from among the leaders or hires them from outside the company. Both leaders and foremen are paid hourly. D & L also employs salaried supervisors, whom it selects from among the foremen or hires from outside the company. The plaintiffs do not contend that D & L discriminated in promoting blacks to the salaried supervisor positions.

6 . D & L would give an employee a temporary upgrade to a craft position when a regular craft employee was ill or on vacation, or simply when D & L needed an additional craft employee because of an increased work load.

7 . Even though plaintiffs alleged violations of both § 1981 and Title VII, the elements of both claims are identical. Flanagan v. Aaron E. Henry Community Health Servs. Cir., 876 F.2d 1231, 1233 (5th Cir.1989); Payne v. Travenol Lab., Inc., 673 F.2d 798, 818 (5th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982). Therefore, we employ only one analysis in evaluating the plaintiffs' Title VII and § 1981 claims.

8 . After the plaintiff has established a prima facie case of discrimination, "the employer carries the burden of producing evidence of a business justification for his employment practice.” Wards Cove, 490 U.S. at 659, 109 S.Ct. at 2126. However, "the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.” Watson, 487 U.S. at 987, 108 S.Ct. at 2790, quoted in Wards Cove, 490 U.S. at 549, 109 S.Ct. at 2126.

9 .The district court also held that even if the plaintiffs did present a prima facie case under the disparate impact theory, they would not be able to satisfy their burden of persuasion because D & L "adequately justified the method and manner by which it conducted its hiring and put forth legitimate reasons totally unrelated to race for making the various changes in its practice. As such, ... plaintiffs have failed to show that the proffered hiring practices and changes therein did not serve the legitimate ends of the employer.” Id. Because we hold that the plaintiffs did not present a prima facie case, we do not review whether they demonstrated by a preponderance of the evidence that they were discriminated against as a result of a specific employment practice.

10 . One individual, Poitier Anderson, alleged that a guard told him that the Company was not giving applications to blacks. The district court did not find Anderson's testimony credible because Anderson filed two EEOC claims and filled out an EEOC questionnaire after the alleged statement was made without ever mentioning it. This finding is not clearly erroneous.

11 . The plaintiffs also argue that D & L discriminated against blacks by relying on word-of-mouth to inform interested persons of job openings and that this practice resulted in blacks having less access than whites to hiring information. D & L officials, however, testified that it was common knowledge among all employees, including those in non-managerial positions, that the Company was going to be hiring. In fact, non-employees on occasion knew D & L was about to hire before Grizzard informed Haynes. For example, plaintiff Chris Harris, along with two other blacks, heard from a black, non-super-visoiy employee that D & L was hiring. However, when Harris, who was waiting at the plant when Haynes arrived for work one morning, asked Haynes for an application, Haynes told her that D & L was not hiring. Later that morning, however, Grizzard informed Haynes that D & L would be hiring new employees, and Harris then obtained an application.

12 . The EEOC filed an amicus curiae brief agreeing with the plaintiffs’ contention that the district court erred in its statistical analysis of the evidence. We note, however, that the EEOC office in Mississippi rejected as meritless the discrimination charges filed by the plaintiffs.

13 . The plaintiffs also seem to suggest that we should draw adverse inferences against D & L because of the Company's failure to preserve employment applications for a one year period, pursuant to the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.4(A)-(B) (1978). However, the "Uniform Guidelines are not legally binding. They have not been promulgated as regulations and do not have the force of law." Clady v. County of Los Angeles, 770 F.2d 1421 (9th Cir.1985) (citing General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 410-11, 50 L.Ed.2d 343 (1976)), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915 (1986). Moreover, the applications kept by D & L roughly correspond to the six month period preceding the plaintiffs' filing of their EEOC charges. Although D & L normally would have discarded the April applications after six months, Haynes testified that she kept all applications after being notified of the EEOC charges. Consequently, the number of applications available for analysis was consistent with D & L’s policy of keeping applications for only six months. We therefore decline to follow the plaintiffs' suggestion.

14 . Because we agree with the district court that actual applicant flow was the best measure of D & L’s performance, we need not address whether the district court erred in failing to follow the seven standards offered by the plaintiffs to define the labor pool available to D & L. The district court rejected each standard as being flawed.

15 .Dr. Haworth divided the applications into six "pools,” which reflected each hiring event, and compared the percentage of blacks and whites hired from the applicants in each pool. Only one hiring pool — pool 5, which covered the one-month period of October 1984 — reflected a statistically significant standard deviation. Haworth also analyzed the pools on an aggregate basis, comparing the percentage of blacks hired who applied from April 1984 through mid-January 1985. She found what the parties agree to be a statistically significant standard deviation. Ha-worth testified, however, that pool 5 largely accounted for the deviation. When she excluded pool 5 from the analysis, she found the standard of deviation to be statistically insignificant. The district court credited Haworth's testimony that the aberrational result found in pool 5 was due to the fact that the percentage of white applicants with relevant employment experience was higher in pool 5 than in other pools. As a result, the district court found that pool 5 should be excluded from the analysis as an anomaly. This finding is not clearly erroneous. See Lewis v. NLRB, 750 F.2d 1266, 1276 n. 17 (5th Cir.1985) (noting that one significant standard deviation did not establish disparate treatment).

16 . Applications submitted by blacks constituted 37.6% of the April to October applications and 60.4% of the October to January applications.

17 . In reviewing the record, we note that many of the witnesses had little or no familiarity with the charges that they signed and filed with the EEOC. Indeed, one person — Richard Grant-stated that he did not read the charge but merely signed it when it was presented to him. See note 46 infra.

18 .Assuming arguendo that the pools were too small to permit meaningful statistical analysis, Dr. Haworth also analyzed the pools on an aggregate basis and found no statistically significant deviation when pool 5 was omitted. See note 15 supra. Thus, this analysis, which the district court also credited, was not based on a sample significantly smaller than that utilized by the plaintiffs' expert. Therefore, the district court did not clearly err in refusing to find that D & L possessed discriminatory intent with regard to its hiring practices.

19 . The plaintiffs' analysis showed that D & L hired 84.4% of white applicants and 50.8% of black applicants referred by the MSES.

20 . The plaintiffs again contend that the district court should not have accepted Haworth's analysis because it was based on sample sizes too small to yield meaningful statistical data. Whether a sample is too small to yield meaningful results is a determination made by the district court on a case-by-case basis. Watson, 487 U.S. at 995 n. 13, 108 S.Ct. at 2789 n. 13; Rendon, 883 F.2d at 397. Under the facts of this case, the district court did not clearly err in accepting D & L’s analysis.

21 . The district court also found that even if it was proper to use the number of blacks in D & L's production work force as a benchmark, the evidence did not establish a prima facie case of discriminatory conduct:

[W]hen comparing the percentage of blacks in the leader, foreman, and supervisor classifications at the company to the percentage of blacks in the production workforce, the ratio of the percentage [of] blackfs] in supervisory categories (42%) to the percentage of blacks in production workforce (80%) is much higher than the similar proportion of the Bolivar County figure of 19 percent black in supervisors of production workers, when compared with the blue-collar (60.7%) and manufacturing (58.2%) rates. Stated otherwise, if blacks at [D & L] were represented in supervision in the same percentage as in other industries in Bolivar County relative to the percentage in the production workforce, the benchmark would only be 25%, or seventeen percentage points less than what it has been. Thus, even from the perspective of plaintiffs, the defendant's performance relative to its production workforce far exceeds the performance of other Bolivar County companies.

Record Excerpts at 91. As we uphold the district court's determination on other grounds, we need not reach this issue.

22 . D & L demonstrated that blacks constituted 42% its leaders, foremen, and supervisors during the Grizzard years. Based on this evidence, the district court found that the percentage of black employees in supervisor positions at D & L "was not only well within but beyond the range of what would be expected when compared with the relevant labor market, which, in this case, is the percentage of blacks in supervision in production occupations.”

23 . However, a demonstration by the employer that, at the “bottom-line,” blacks were overrepresented in its work force still is relevant to the ultimate determination whether the employer engaged in a pattern or practice of discrimination. See St. Mary's Honor Center v. Hicks, - U.S. -, -., 113 S.Ct. 2742, 2751, 125 L.Ed.2d 407 (1993).

24 . The plaintiffs challenge the district court’s use of this figure, arguing that it encompassed only supervisors of "precision” production occupations, such as metal working occupations, apprentices, boilermakers, and sheet metal workers. On direct examination, however, D & L's expert, Dr. Haworth, testified that leaders and foremen at D & L would be included in the 19.1%-black figure. The district court did not err in resolving this credibility dispute in favor of D & L. Anderson, 470 U.S. at 575, 105 S.Ct. at 1512. The district court reasonably concluded that the figure was sufficiently similar to the occupation of D & L supervisors, especially when the plaintiffs failed to introduce any evidence to the contrary.

25 . At all times during the relevant period, D & L’s workforce was more than 70% black, and the production workforce was approximately 80% black. 1980 Census data showed that the civilian labor force in Bolivar Counly was 51.9% black, the manufacturing labor force was 58.2% black, and the blue-collar labor force was 60.7% black.

26 . Applying the mathematical formula suggested in Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), the difference between the number of blacks expected to receive promotions and the number who actually did receive promotions is not statistically significant (total of 22 promotions):

Number of S/D = O-NP

VNP (1-P)

S/D = Standard Deviations

O = Actual number of blacks who received a promotion

N = Number of workers who received a promotion

P = Probability of a black being promoted from the relevant population

- (22 x 25%) = -0.25 2.03 | H

See also Lopez v. Laborers Int'l Union Local No. 18, 987 F.2d 1210, 1215 n. 14 (5th Cir.1993); Lewis, 750 F.2d at 1274 n. 12. Because the difference is less than 2 standard deviations, it is not statistically significant. We also note that if we use 42% — the number of D & L leaders, foremen, and supervisors who were black — in place of 25%, the difference between the number of blacks promoted and the expected number (9.24) still is not statistically significant (1.84 standard deviations). Consequently, the plaintiffs failed to prove a prima facie pase of discrimination.

27 . Grizzard recommended to his supervisors that they consider Harold Brown, Richard Grant, Marilyn Holmes, and Vera Watson — all black employees — for promotion. Richard Williams, a black supervisor, testified that he offered one promotion to four black employees, who rejected it, before offering it to Robert LaPresto, a white employee. Charlie West, another black supervisor, recommended James Haney, a white employee, for promotion. L.C. Taylor, a black shift supervisor, recommended Chris Strickland, a white employee, for promotion while Howard Watson recommended Vera Watson, a black employee, for a leader position. E.W. Tolbert, a black supervisor, testified that he was involved in promoting Randy Daniels, a white employee who was offered a promotion only after six black employees had turned it down. See also part V.C infra.

28 . We also note that D & L substantially increased the number of blacks holding salaried supervisor positions, which the plaintiffs exclude from their claim that D & L discriminated against black employees with regard to promotions. Grizzard promoted E.W. Tolbert from a shift supervisor position to production manager, the second-in-command at the plant. Charlie West then took over Tolbert’s position as a shift supervisor. Grizzard also promoted Richard Williams from supervisor to department head, Vera Watson to foreman and then to shift supervisor, and Harold Brown, Charlie Lofton, and Sylvester Parker from foremen to salaried supervisors.

29 . According to the plaintiffs, white employees between 1978 and September 1982 worked for D & L on average 71.8 months before promotion; black employees on average worked only 43.2 months before promotion. During the presuit Grizzard years, the plaintiffs contend that whites worked on average 15.1 months before promotion and blacks worked on average 84.8 months. We note, however, that using plaintiffs' exhibit 144, whites apparently worked on average 51 months before promotion. While we have not recomputed every number that the plaintiffs cite in their brief, we point out this discrepancy to demonstrate the problems that exist with the plaintiffs' statistical analysis.

30 . The district court also stated that the plaintiffs’ evidence

“paint[ed] a distorted picture which attaches responsibility to Mr. Grizzard for the years before his arrival that a black employee was not being promoted instead of giving him credit for promoting black employees his predecessors overlooked. From this perspective, the court finds that the only way Grizzard could have passed muster was to continue to bypass the senior black employees in favor of recently-hired black employees.... Moreover, plaintiffs have chosen figures which attempt to compare the pre- and post-Grizzard periods for promotions, conveniently ignoring the fact that in the pre-Grizzard period blacks were given more favorable treatment — the system was not neutral. Blacks were on average less senior than their white counterparts by some twenty-eight months.”

Record Excerpts at 101-02.

31 .The plaintiffs contend that D & L knew that the black employees- would turn down the promotion offers. The district court, however, credited the testimony of E.W. Tolbert — D & L's production manager — that the black employees who turned down promotion offers were offered multiple promotions because they were above-average employees and their supervisors felt that they might accept a new offer, an offer of a different job, or an offer made by someone else. The district court was within its province to resolve credibility disputes, Anderson, 470 U.S. at 575, 105 S.Ct. at 1512, and the district court’s finding on this issue is not clearly erroneous.

32 . The plaintiffs contend that the district court’s findings would allow D & L to discriminate against many black employees without hindrance as long as the Company treated other blacks the same as white employees. However, "this attack overstates the impact of the district court’s ... analysis.” Lewis, 750 F.2d at 1274 n. 11. D & L introduced evidence demonstrating that legitimate reasons lay behind the delayed promotions for some blacks and the relatively early promotions for some whites. This evidence, as the district court properly found, tended to negate the plaintiffs' attempted showing that a pattern or practice of discrimination in D & L’s promotion policies existed. Id.

33 . Plaintiff Daniel Anderson testified that upon returning to work from a doctor's examination, his supervisor refused to let him take a break that he had missed. Anderson then clocked out and left the plant. Grizzard confronted Anderson the next day, asking him "who in the hell did he think he was to be able to just leave because he couldn’t take his break.” On the second occasion, Grizzard used the term "son-of-a-bitch" when he discovered that someone had removed a notice from the company bulletin board. When the union filed a grievance regarding the incident, Grizzard issued a written apology that explained his comments were not directed to any of the employees within earshot.

34 .We also note that two black salaried supervisors — Charlie West and E.W. Tolbert — and a black foreman — Monroe O’Neal — testified that Grizzard was "a good man,” "a super plant manager,” and was not prejudiced. Moreover, Tolbert stated that Howard Watson was an "outstanding production manager” who also was not prejudiced.

35 . General and rack maintenance positions are two of the job classifications at D & L’s plant considered to be "craft” positions.

36 . The plaintiffs claim that the following statistical evidence established a prima facie case of discrimination:

Table 6. Temporary Upgrades to Gi signed eral Maintenance: Percentage of Total Hours As-

Time Period % White % Black

Pre-Grizzard Period [1/15/81-10/2/82] 11.60% 88.40%

Grizzard Pre-Suit Period [10/2/82-7/4/85] 92.59% 7.40%

Post-Suit Period [7/5/85-9/19/85] 46.60% 53.40%

Table 7. Temporary Upgrades to Rack Maintenance: Percentage of Total Hours Assigned

Pre-Grizzard Period 85.40% 14.61%

Grizzard Pre-Suit Period 100.00% 0.00%

Post-Suit Period 0.00% 100.00%

Brief for Plaintiffs at 66. In presenting these statistics, the plaintiffs stated only that the statistics were "drawn from [the] stipulated data.” After much searching, we discovered that the raw data undergirding these statistics was presented to the district court through a joint stipulation.

37 . For example, the plaintiffs did introduce evidence pertaining to the qualifications of Thomas Hardy and Daniel Anderson, Jr. for temporary upgrade assignments. These two individuals, however, were not qualified for such assignments. See part VIII.D infra.

38 . The plaintiffs' statistics regarding the number of rack-maintenance temporary-upgrade hours worked by blacks suffer from the same problems. For example, out of the three employees given temporaiy upgrades in the pre-Grizzard period, a white employee — Willie Mullen — worked approximately 82% of the total hours. In the Griz-zard pre-suit period, one white employee — Edward Otto — worked 100% of the hours. In the post-suit period, one black employee — Alfred Kemp, Sr. — received 95% of the temporaiy upgrade hours.

39 . The 1980 census figures for Bolivar County indicate that blacks held only 33.4% of all precision production craft and repair positions county-wide.

40 . Howard Watson, who had to approve Kemp's availability for temporaiy assignments, supplied a legitimate, nondiscriminatoiy reason for Kemp's lack of temporary upgrade assignments during the Grizzard pre-suit period. Watson testified that he sometimes refused to approve Kemp for temporary upgrades because Kemp was needed in a production department.

41 . "When a case has been fully tried on the merits, the adequacy of a party’s showing at any particular stage of the McDonnell Douglas ritual-is unimportant. We focus our inquiiy on whether the record contains evidence upon which a reasonable trier of fact could have concluded as the juty did.” Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir.1993) (citation omitted).

42 . For example, plaintiff Chris Harris testified that she and two other blacks were able to obtain applications in October 1984. Plaintiff Linda Davis testified that although she was not able to procure an application, her sister and another person obtained applications. Plaintiff Bobbie Sharp testified that while she was not able to obtain an application in mid-1984, she did obtain an application from D & L in mid-1983; Sharp also testified that on the latter occasion, she saw other blacks filling out applications. Thomas Hardy, a D & L employee, testified that his wife procured an application from D & L in 1984, while Malcolm Smith testified that he obtained an application October 2, 1982 and was hired the next month. Kimroy Williams, a D & L employee, testified that three of his relatives applied for employment with D & L during the Grizzard years.

43 .The plaintiffs also complain that the application procedures instituted by Haynes when she became personnel manager — making all applicants come to the plant, refusing to allow employees to take blank applications home with them — were intended to harm potential black applicants. However, D & L demonstrated that it had legitimate, nondiscriminatory reasons for changing the application process. For example, Haynes testified that when she allowed employees to take applications from the plant, many were never returned. She also stated that making potential employees come to the plant to obtain and complete applications helped to ensure that the people applying actually wanted the job, had transportation to and from the plant, and could read and write. The district court credited her testimony, and this finding is not clearly erroneous.

44 . For example, although Miller Slaughter testified that D & L did “a lot of discriminating," she would not consider a company that has a large percentage of black employees to be acting dis-criminatorily. Melvin Shaw testified that he was discriminated against simply “because [he] knew Dhe] was qualified to work [at D & L] but ... didn't even receive an application.” Moreover, the plaintiffs uniformly testified that neither Haynes nor D & L’s security guards treated them in a harsh manner or directed derogatory or vulgar language at them.

45 . Cannon, O'Neal, and Townsend were not entitled to be recalled under the terms of D & L's collective bargaining agreement.

46 .Hall challenges D & L's assertion that he rejected an offer of a promotion. However, Grizzard and Howard Watson, the production manager at the time, both testified that Hall did turn down a promotion because the promotion would have required Hall to work on the second shift. The district court credited this testimony over that of Hall. This determination was not clearly erroneous. See Anderson, 470 U.S. at 574, 105 S.Ct. at 1511-12.

47 . Moreover, Grant admitted that he was not qualified for promotion until 1985. However, he filed an EEOC charge in 1984 alleging that D & L failed to promote him for discriminatory reasons. Grant explained this inconsistency by stating that he did not read the EEOC charge before he signed it and thus had no idea what the charge alleged.

48 . After D & L noticed a change in Williams's attitude in 1987, the Company promoted him.

49 . Hardy testified that he had done some welding in an auto body shop and took high school welding classes in the early 1970s. Anderson also admitted that he had little welding experience, although he had taken "mechanics" classes in high school.

50 . The plaintiffs, without citing any authority, contend that the district court erred in relying on these notes because the interviewer never testified. However, the notes were attached as an exhibit to a joint stipulation submitted to the court by both parties. Because the stipulation stated that both it and the attached "exhibits shall be received in evidence at the trial of this case," the plaintiffs’ contention is without merit.

51 . Anderson also argues that he had experience "fixing” D & L machines and therefore was qualified for the promotion. However, Wallace Bailey, the maintenance department superintendent, testified that Anderson’s experience "fixing” machines simply involved routine preventive maintenance duties performed by all D & L employees and was not similar to the duties performed by maintenance department employees.

52 . The plaintiffs do not appeal the district court's conclusion, based on our holding in Carter v. South Central Bell, 912 F.2d 832 (5th Cir.1990), cert. denied, 501 U.S. 1260, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991) that their claims of retaliatory discharge were not actionable under § 1981.

53 . This section prohibits an employer from "discriminating] against any of his employees ... because [the employee] has made a charge ... under this subchapter.” 42 U.S.C. § 2000e-3(a).

54 . Haywood did not file EEOC charges, but his father did.

55 . Jackson argues that D & L terminated her one day before the 30-day grace period for her fourth garnishment expired. Haynes, however, testified that she measured the grace period monthly — ■ i.e., if an employee was notified of a garnishment on the fifth day of one month, the grace period expired on the sixth day of the following month. Thus, while the grace period usually was 30 days, in some instances it actually was either 29 or 31 days. Because Jackson was notified of her fourth garnishment on February 12, 1985 and fired on March 13, her termination was totally consistent with D & L's customary application of the garnishment policy.

56 . The plaintiffs contend that D & L would have discharged Charles Daniels, Larry Drake, Hazel Lofton, Alice Stapleton, Larry Wesley, and Eddie Williams had the garnishment policy been applied nondiscriminatorily. However, the district court found that Daniels did not violate the policy because Haynes, in applying the policy, did not count garnishments that employees received before she became personnel manager; Drake, Lofton, and Williams did not violate the policy because the thirty-day grace period for the fourth garnishment extended over two years beyond the date that they received their first garnishment; Williams did not violate the policy because his fourth garnishment was released before the end of the thirty-day grace period; Stapleton filed a bankruptcy petition, which barred D & L from counting the garnishments against her; and Wesley did not violate D & L's garnishment policy either because Haynes did not count garnishments received before she became personnel manager or because Haynes simply misapplied the policy. After reviewing the record, we have determined that these findings are not clearly erroneous. Moreover, Lofton was the sister of Robert Melvin, who not only filed EEOC charges but was a named plaintiff in this suit. This fact is wholly inconsistent with the plaintiffs' contention that D & L discharged under the garnishment policy only those black employees who filed EEOC charges themselves or had close relatives do so.

57 .D & L discharged Lester Archie, James Humphrey, and Jimmie James for violations of the garnishment policy. Moreover, D & L discharged Humphrey on the same day that it discharged plaintiff Belinda Cox.