United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2187

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Cota B. Allen; Leon Bee; 

Rickey Billingsley; Charles Doyle;

Mason C. Foster; Lawrence

Hancock; Jim Ingraham; Charles

Hester; Joe M. Lewis; Larry

McClain; Claude Miller; William

Morris; Ernest Pointer, III; Clifford

W. Robinson; Andrew Taylor;

Willis Warner; Ira L. Whitfield;

Bernard Wooten,

Appellants,

v.

Entergy Corporation; Arkansas

Power and Light Company;

International Brotherhood of

Electrical Workers, Local 750;

International Brotherhood of

Electrical Workers, Local 647,

Appellees.

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Appeal from the United States

District Court for the

Eastern District of Arkansas.

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Submitted: February 12, 1999

 Filed: June 22, 1999

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1The Honorable Roger L. Wollman succeeded the Honorable Pasco M. Bowman

as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the end

of the day on April 23, 1999.

2The Honorable Stephen M. Reasoner, United States District Judge for the

Eastern District of Arkansas. 

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Before WOLLMAN, Chief Judge,1 LOKEN, and HANSEN, Circuit Judges. 

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HANSEN, Circuit Judge.

The plaintiffs are African-American employees who, as a result of a reduction

in force, were laid off from their employment at one of two electrical generating plants

owned by Entergy Corporation, formerly known as Arkansas Power and Light. The

plaintiffs brought this race discrimination suit, challenging the validity of the selection

procedure used by Entergy Corporation to determine which employees to lay off. They

also argued that their union (two local chapters of the International Brotherhood of

Electrical Workers) did not adequately represent their interests when it acquiesced in

the selection procedure. The district court2 granted summary judgment in favor of

Entergy Corporation and the union. We affirm. 

I. 

The district court states the undisputed facts as follows. The plaintiffs were laid

off in a reduction in force conducted by Entergy Corporation in May 1995. To

facilitate the layoff, the company and the union negotiated a side agreement to the

existing collective bargaining agreement, requiring all employees to take a selection test

to determine which employees would be laid off. Two aptitude tests were used for the

selection process--the Plant Operator Selection System (POSS) and the Power Plant

Maintenance Positions Selection System (MASS)--which had been used for years by

Arkansas Power and Light in the hiring process. The company agreed to allow each
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person to take the test twice if necessary. The plaintiffs did not pass the test after two

attempts and were laid off, as were white employees who failed the test twice. Those

who passed the selection test, including several African-American employees in the

same seniority classifications as the plaintiffs, were retained and placed in jobs by

seniority. 

The plaintiffs brought this Title VII race discrimination suit against the union and

the company, contending that the selection tests had a disparate impact on AfricanAmerican employees, that the tests were not job related, and that the union improperly

bargained away the use of the less discriminatory seniority system with which to make

the layoff selections. The company and the union filed motions for summary judgment,

contending that they negotiated the selection process in good faith and that the selection

tests were properly validated as job related according to EEOC guidelines. The district

court granted summary judgment to the company and the union, concluding that the

plaintiffs failed to offer any proof to counter the validity and job relatedness of the

aptitude tests. The plaintiffs now appeal. 

II.

We review de novo the district court’s grant of summary judgment, applying the

same standards as the district court. Mayard v. Hopwood, 105 F.3d 1226, 1227 (8th

Cir. 1997). Summary judgment is appropriate if the record “show[s] that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). We view the facts and the inferences to be

drawn from those facts in the light most favorable to the nonmoving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party resisting

a properly supported summary judgment motion may not rest upon the mere allegations

or denials of the pleadings, but by affidavit or otherwise as provided by Rule 56 must

set forth specific facts showing the existence of a genuine issue for trial. See Dancy
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v. Hyster Co., 127 F.3d 649, 653 (8th Cir. 1997), cert. denied, 118 S. Ct. 1186 (1998);

see also Fed. R. Civ. P. 56(e). 

"Title VII forbids the use of employment tests that are discriminatory in effect

unless the employer meets 'the burden of showing that any given requirement has a

manifest relationship to the employment in question.'" Albemarle Paper Co. v. Moody,

422 U.S. 405, 425 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432

(1971)) (alterations omitted). The standard of proof articulated in the Griggs case and

codified in 42 U.S.C. § 2000e-2(k) states that where the plaintiff has made a prima

facie case of disparate impact from a selection procedure, the burden then shifts to the

employer to justify the procedure by showing that it is related to safe and efficient job

performance. See Donnell v. General Motors Corp., 576 F.2d 1292, 1299 (8th Cir.

1978). Once the employer meets this burden, the plaintiff must show that an alternative

selection method exists, having substantial validity and less of an adverse impact; if

such an alternative exists, the employer must choose the less discriminatory method.

See Hawkins v. Anheuser-Busch Inc., 697 F.2d 810, 816 (8th Cir. 1983).

The parties apparently concede for summary judgment purposes that the

plaintiffs set forth a prima facie case of disparate impact resulting from the testing

procedures. The plaintiffs argue on appeal that there remains a material issue of fact

concerning whether the company satisfied its burden of demonstrating that the selection

tests were sufficiently related to the specific jobs the plaintiffs sought. In support of

summary judgment, the company submitted the affidavit of Dr. David J. Kleinke, a

psychologist employed as Director of Employment Testing for the Edison Electric

Institute, which developed the tests used here. His affidavit explains the development

of the tests. For each test, a checklist of crucial tasks was compiled by questioning

thousands of plant operators and maintenance workers in fossil fuel power plants

throughout the country. Based on this checklist of important tasks, an experimental

testing battery was developed and sampled in the industry. Performance evaluations

were mathematically correlated with the test results and confirmed that higher test
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scores indicated a likelihood of better job performance. Dr. Kleinke stated that the

tests enable power plants to choose employees who are more readily trainable and who

work in a safer fashion, minimizing accidents. The union also submitted the affidavits

of union business managers Gary Mitchell and Bill Heavener, who each stated that

these aptitude tests had been used by Arkansas Power & Light Company "for years in

the hiring process." (Appellees' App. at 7, 15.) 

Dr. Kleinke expressed an opinion that the development and validation of the tests

are consistent with the requirements of the EEOC's Uniform Guidelines on Employee

Selection Procedure. "The EEOC has issued 'Guidelines' for employers seeking to

determine, through professional validation studies, whether their employment tests are

job related." Albemarle Paper Co., 422 U.S. at 430-31; see 29 C.F.R. pt. 1607. While

these guidelines have not been promulgated pursuant to formal procedures established

by Congress, see Albemarle Paper Co., 422 U.S. at 431, they are nevertheless "entitled

to great deference" as "[t]he administrative interpretation of the Act by the enforcing

agency," Griggs, 401 U.S. 433-34. The EEOC Guidelines and the Griggs case present

the same message--tests with a discriminatory impact are impermissible unless the

employer demonstrates through professionally acceptable methods that the tests are job

related. See Albemarle Paper Co., 422 U.S. at 431. Dr. Kleinke stated his opinion that

the development and validation of the tests at issue demonstrate that they are job

related. He also stated that following a two-year review of the validity of the tests, the

Department of Labor's Office of Federal Contract Compliance Programs concluded in

1991 "that the validation studies for both tests meet the professional standards required

by the Uniform Guidelines." (Appellees' App. at 129.) Dr. Kleinke was unaware of

any selection system that would do a better job of selecting qualified employees for the

plant operator or maintenance worker positions. 

Entergy Corporation also asserts that simultaneously with the reduction in force,

it was combining the separate jobs of power plant operator and power plant

maintenance into one "multi-craft" position, which required each worker to perform the
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tasks of both jobs. The company used the aptitude tests to help facilitate this change.

The company required each employee to take an aptitude test in a basic area other than

the worker's own craft to determine the suitability of an existing worker for continued

employment in the new multi-craft positions.

In response to the defendants' motions for summary judgment, the plaintiffs

submitted their own affidavits, mostly complaining of discriminatory treatment by the

company in general, complaining of the union's conduct in acquiescing to the tests, or

complaining of the manner in which the tests were administered. Only one plaintiff,

Clifford Robinson, submitted an affidavit purporting to rebut the job relatedness of the

tests. Mr. Robinson stated in conclusory fashion that the test he took was biased and

"had no relevancy to the jobs that [he] performed." (Appellants' App. at 65 (emphasis

omitted).) 

This statement is insufficient to preclude summary judgment. Mr. Robinson's

affidavit does not explain how the test differed from either the old job he performed or

the new job he sought that required multi-craft skills. Mr. Robinson's conclusory

affidavit "is devoid of any specific factual allegations" challenging the validity of the

test, and as such, it cannot withstand a properly supported summary judgment motion.

Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 428 (8th Cir. 1998). The

plaintiffs did not offer any expert testimony, or any other evidence, to rebut Dr.

Kleinke's affidavit testimony that the tests were valid and job related. Likewise, the

plaintiffs offered nothing to rebut Dr. Kleinke's testimony about the Department of

Labor's conclusion that the tests are consistent with the EEOC guidelines, which

require selection tests to be job related. The record includes the unrebutted testimony

that the same tests have been used for years in the hiring process at the power plants

where the plaintiffs worked and that the company needed the aptitude tests to indicate

whether the existing employees would be suitable for the new multi-craft positions.

One plaintiff's conclusory assertion that the test was not related to the job he had

performed is insufficient to prevail over the defendants' properly supported summary
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judgment motion. See Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th

Cir. 1998) ("Conclusory affidavits, standing alone, cannot create a genuine issue of

material fact precluding summary judgment.") 

The plaintiffs contend alternatively that even if the defendants met their burden

to demonstrate that the tests were valid and job related, they still are not entitled to

summary judgment because a less discriminatory selection procedure was available.

They assert that the seniority system, which was abandoned as a selection method for

the reduction in force by agreement of the union in favor of the POSS/MASS testing

systems, was an available alternative selection procedure which would cause less of a

disparate impact on minorities, and accordingly, the company and the union acted

improperly by abandoning the seniority system. In response, the defendants point to

Dr. Kleinke's expert opinion that he knew of no other tests that would substitute for the

POSS and MASS and be equally job related. 

There is no question that a seniority system is a legitimate and nondiscriminatory basis for accomplishing a reduction in force. See Bright v. Standard

Register Co., 66 F.3d 171, 173 (8th Cir. 1995). This does not mean, however, that an

aptitude selection test is necessarily illegally discriminatory. The defendants

established that the tests were valid and job related, and demonstrated that they were

necessary to determine which employees would be best suited to the new multi-craft

positions. The plaintiffs make only a conclusory argument that the seniority system

would have been less discriminatory. They make no showing to suggest that seniority

in the previous single-craft positions would be an equally accurate predictor of success

in the new multi-craft positions. 

III.

Accordingly, we affirm the judgment of the district court. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT