682 F.2d 130 | 7th Cir. | 1982
Lead Opinion
This is a review of the district court’s finding that defendants-appellants have unlawfully terminated plaintiff’s employment as a Dietician III at the Fort Wayne State Hospital and Training Center (State Hospital), because of his race in violation of Title
I
We proceed by addressing appellants’ argument which is tantamount to an assertion of an affirmative defense, namely that in order to establish an element of a prima facie case of employment discrimination, the plaintiff is required to prove that his position was not filled by “a member of the protected minority.”
In McDonnell Douglas Corp. v. Green, the Supreme Court held that a plaintiff could make a prima facie claim of employment discrimination by showing:
(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 applicants from persons of complainant’s qualifications.
411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted). Appellants argue that appellee has not and cannot establish a prima facie case of discriminatory discharge from employment because “element (iv) [of the McDonnell model for proving a prima facie case] necessitates a showing that a plaintiff’s position was filled by a person not a member of the protected minority.... [And since] the evidence established that [appellee, a black man] was permanently replaced by a member of a protected class [a female], the burden of going forward did not pass to Appellants.”
That reasoning would foreclose a plaintiff from proving a prima facie case unless an employer discriminated not only against plaintiff but also against every so-called protected minority by hiring a so-called “non-protected” person to fill the position.
The fact that appellants have hired a female to replace appellee does not therefore preclude appellee from proving a prima facie case of discriminatory discharge from employment. “A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination .... ‘The company’s later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it.’” Furnco Const. Corp. v. Waters, 438 U.S. at 579, 98 S.Ct. at 2950-51, citing, Teamsters v. United States, 431 U.S. 324, 341-342, 97 S.Ct. 1843, 1857-58, 52 L.Ed.2d 396 (1977).
II
We will now apply the clearly erroneous standard to the review of the district court’s findings of subsidiary facts encompassing the parties’ conduct. Fed.R.Civ.P. 52(a). However, the ultimate fact of discrimination, namely whether defendants’ conduct constitutes a violation of Title VII, involves both a finding of fact and a conclusion of law. Consequently, we may make an independent examination of the ultimate fact of discrimination, though we are still bound by findings of subsidiary facts which are not clearly erroneous. Stewart v. General Motors Corp., 542 F.2d 445, 449 (7th Cir. 1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977).
Defendants-appellants then met their burden of rebutting appellee’s prima facie case,
Direct showing of the discriminatory reasons that more likely motivated an employer in the decision to discharge an employee is not the only method of proving intentional discrimination. Intentional discrimination may also be proven “indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; McDonnell Douglas v. Green, 411 U.S. at 806-807, 93 S.Ct. at 1826-27. We hold that the evidence establishes that the appellee proved that appellants’ proffered reason was not the true reason for his discharge and that he was the victim of intentional discrimination. The primary facts proved at the trial were that while plaintiff was working at the State Hospital, before he went on sick leave, he was informed by a State Hospital social worker that there was a need at the Glen Oaks Nursing Home for a consulting dietician in order for the nurs
The facts further prove that when plaintiff discussed returning to his job at the State Hospital, Dr. Towles “objected violently,” since plaintiff’s post-surgery restrictions included sitting and lifting and plaintiff’s duties at the State Hospital required a great deal of sitting and some occasional lifting. Most importantly, State Hospital policies required that a person returning from sick leave return with no restrictions. Thus, plaintiff was still unable to return to the State Hospital because he could not do so free of the restrictions placed on him by the attending surgeon. However, plaintiff’s restrictions did not preclude him from engaging in part-time consulting work at the nursing home. His work there required neither sitting nor lifting. Further, plaintiff intended to make only approximately five consulting trips during the four-month period of his convalescence. Dr. Towles expressly approved plaintiff’s limited number of consulting trips on the condition that plaintiff follow specified precautions, but he did not approve plaintiff’s return to work at the State Hospital because of the difference in job requirements between the nursing home and State Hospital.
Dr. Ackerman, a doctor of education who is Superintendent of the State Hospital, learned of plaintiff’s consulting work at the nursing home. Dr. Ackerman made a visit to the nursing home to see State Hospital patients and to personally investigate whether plaintiff was consulting there. However, Dr. Ackerman did not inquire as to the nature or extent of plaintiff’s duties at the nursing home, nor did he inquire of plaintiff or of Dr. Towles as to plaintiffs duties or whether plaintiff had his doctor’s permission to perform the consulting duties. The district court found that this latter course of conduct by Dr. Ackerman was in stark contrast to his personal investigation at the nursing home to verify that plaintiff had done some part-time consulting there.
Although Dr. Ackerman would not have allowed plaintiff to return to work until plaintiff could perform his full duties at the State Hospital, Dr. Ackerman determined that plaintiff’s engaging in part-time consulting work while drawing sick pay from the State of Indiana constituted “conduct unbecoming a state employee,” and terminated plaintiff’s employment at the State Hospital, despite the fact that the part-time work was undertaken to meet the Hospital’s need as recognized by its social worker. Dr. Ackerman did not discuss the termination with the plaintiff nor with Dr. Towles before suspending plaintiff effective July 16, pending termination as of August 15, even though Dr. Towles had invited such inquiry.
The following evidence was proved, establishing that defendants’ proffered reason for discharging plaintiff was a pretext:
Only after receiving Dr. Towles’ strongly worded letter did Dr. Sirlin call Dr. Towles on July 22. What the district court found as most probative of the fact that appellants’ proffered reason was a pretext, was a memorandum prepared by Dr. Sirlin to Dr. Ackerman which purports to convey the July 22 conversation between Doctors Towles and Sirlin, but which in no way accurately reflects the conversation. Dr. Sirlin’s memo stated that Dr. Towles “feels he has been misled by [appellee]”. However, the district court found that Dr. Towles’ July 19 letter to Dr. Sirlin and Dr. Towles’ court testimony thoroughly discredit this conclusion, which was the superior’s basis for appellants’ articulated reason for discharging appellee. Appellants’ records and the court testimony indicate appellants’ fabrication of the facts and the utter disregard of information at their disposal relevant to appellee’s conduct.
In summary, the appellants’ articulated reason of “conduct unbecoming a state employee” was a conclusory reason which might have been a legitimate reason for discharging the appellee if he had not been able to prove employer’s intentional discrimination by showing that the articulated reason was a mere pretext.
Ill
For the foregoing reasons, the district court’s order
. Appellant cites Markey v. Tenneco Oil Co., 439 F.Supp. 219, 223 (D.C.La., 1977) aff’d in part and rev’d in part, 635 F.2d 497 (5th Cir. 1981). However, it appears that appellant is relying on the holding at 224 where the court stated: “It is questionable in this case whether Markey has even gone so far as to present a prima facie case of discrimination. A plaintiffs mere suspicion that he has been discriminated against, is not sufficient evidence to support an individual charge under Title VII. Mar-key did not demonstrate that the position he vacated was filled by a white person. In fact, Paul Floth testified that Markey had been replaced by a black.” (footnote omitted) (emphasis added)
As will be clear from our analysis, we disagree with the language of the Markey court that appears to require for proof of a prima facie case of a Title VII discrimination that the person discharged be replaced by a “non-minority.”
. “The ultimate fact is that State authorities are branded as having engaged in discriminatory conduct in violation of a federal statute, notwithstanding, as the majority opinion observed, ‘the appellants did in fact seek minority applicants.’ ” Infra at 138 (Pell, J., dissenting).
. Establishment of a prima facie case under the McDonnell model “creates a presumption [a legally mandatory inference] that the employer unlawfully discriminated against the employee”. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-255, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). It does not constitute an ultimate finding of fact as to discriminatory discharge from employment under Title VII. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1981). “The ultimate burden of persuading the trier of fact that the defendant unintentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. After a plaintiff proves, by a preponderance of the evidence, a prima facie case of discriminatory discharge or failure to hire, the “burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s rejection [or employee’s discharge].” McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824. If such reason is articulated by the employer, the focus returns to the plaintiff so that he can be afforded a fair opportunity to show that [the employer’s] stated reason for [the employee’s] rejection [or discharge] was in fact pretext.” Id. at
. Even assuming arguendo that appellants’ interpretation of the (iv) element in McDonnell was correct, their argument is nonsensical. The facts in the instant case clearly show that appellants did in fact seek “minority” applicants. Therefore even if as appellants contend, “complainant’s qualifications” in McDonnell refers to a complainant’s “minority” status, which, as we made clear, it does not, plaintiff has satisfied the requirement of showing that the employer sought applicants of complainant’s qualification.
. The district court found that “[t]here was absolutely no evidence to indicate that plaintiff was not qualified for his position as chief dietician . ..
. A showing of satisfactory performance is necessary to raise an inference of discrimination in a discharge from employment. Plaintiff met this requirement by showing that employer accepted his work without express reservation. Flowers v. Crouch-Walker, 552 F.2d 1277, 1281-1283 (7th Cir. 1977). Plaintiff contends that he experienced no problems in his employment until the defendant, Dr. Ackerman, was appointed as superintendent of the hospital. Upon said appointment, plaintiff contends he became a victim of a pattern of discrimination by the defendant; as an example, it is alleged that Dr. Ackerman had previously held a hearing without giving plaintiff notice or the right to have an attorney and demoted plaintiff, appointing a lesser qualified white person to plaintiffs job.
. “The defendant[s] need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant[s’] evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254-255, 101 S.Ct. at 1094-95 (citations omitted); see note 9, infra.
. “A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of facts on the issue of whether the defendant’s explanation is pretex-tual.” Id. at 255 n.10, 101 S.Ct. at 1095 n.10; see note 2, supra.
. The dissent mischaracterizes these findings as the majority’s “credibility determination”, and proceeds to make its own findings as to credibility. However the credibility determinations were made by the district court in its province of judging the credibility of the evidence and determining the facts. Unlike the dissent, we do think it was proper for the district court to consider whether actions which have occurred subsequent to the appellants’ determination to discharge the appellee were probative of the actual motives for appel-Iants’ determination. On review we do not find the credibility determinations and the findings of fact clearly erroneous.
. The district court held that “defendants did not meet their burden of establishing sufficient non-discriminatory reasons for terminating plaintiff’s employment,” but the court continued its analysis and held that “[i]t can only be concluded from the evidence in this case that
We hold that the district court’s initial holding that defendants did not establish sufficient non-discriminatory reasons for terminating plaintiff’s employment was non-reversible error. We believe that defendants met their burden of articulating a legitimate reason for plaintiffs discharge in that the articulated reason was sufficient to raise a genuine issue of fact as to whether defendants discriminated against the plaintiff, and it sufficiently met plaintiff’s prima facie case, while framing the factual issue with sufficient clarity so that plaintiff was required to demonstrate pretext. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254, 255, 256, 101 S.Ct. at 1095. Nevertheless, the error is not grounds for reversal in this case, because our independent examination of
the ultimate fact of discrimination leads us to agree with the district court’s finding that the plaintiff had met the burden of showing that defendant’s articulated reason was a pretext.
. See note 11 on page 137.
Dissenting Opinion
dissenting.
In this case, the majority opinion upholds a judgment to the effect that the state authorities had discriminatorily discharged the plaintiff in violation of Title VII. This means in this case, in the words of the majority opinion, that the record established that the employer had treated the plaintiff less favorably than others because of his race. The plain and simple fact is that the plaintiff was engaging in part-time consulting work for pay while drawing sick pay from the public treasury and this was the reason Dr. Ackerman articulated for the discharge, i.e., that this was conduct unbecoming a state employee.
I can think of no way of characterizing the being on the public payroll because of sick leave while not working but nevertheless performing compensated work in the private sector other than that of “unbecoming conduct.” It takes no hyperactive imagination to realize what an embarrassing position the hiring authorities would have been placed in if this had come to the attention of the media. It appears to me that the appearance of unbecoming conduct on the part of a public employee is almost as damaging to the image of good government as would be the actual fact of misconduct.
I regard it as immaterial that the type of work at the nursing home may have been of a less demanding nature than the employment at the state hospital. The state may have had no policy against “moonlighting;” I cannot tell from the record. It certainly, in any event, is an entirely different situation than the present one if a public employee has the capability of performing a second job and is being paid for both. Here he was not performing a second job but only a first job although being paid by the public while not working for it.
I fail to follow the logic of the majority opinion in its holding that the discharge was pretextual. The record is silent as to any discriminatory practices on the part of the appellants toward any employees because of race, color, religion, sex, or national origin. The finding of pretext dangles on the weak thread of the plaintiff’s not being well enough to return to his state job and contradictory testimony as to what one doctor said to another. Apparently, the majority makes the credibility determination as to the accurate reflection of this conversation. Elsewhere, however, in the majority opinion it is clear that the memorandum from Dr. Sirlin to Dr. Ackerman was subsequent to the determination already made, and properly so, that the discharge was justified by conduct unbecoming to a state employee. I see nothing conclusory or pretextual about guarding the public coffers from unwarranted criticism.
In short, the majority’s syllogism seems to be that plaintiff was a member of a protected minority class, that he was a competent employee with acceptable qualifications, that he was discharged because he was working on another job while on sick leave, ergo, the reason given for his dis
The plaintiff may well have been well qualified and when he was on the job he may have been an effective employee. The ultimate fact is that state authorities are branded as having engaged in discriminatory conduct in violation of a federal statute, notwithstanding, as the majority opinion observed, “the appellants did in fact seek ‘minority’ applicants."
This record does not justify that stigma. The appellants did what public officials properly should have under the circumstances here involved.
With all due respect to the majority opinion, and to the then district court judge, I would reverse with direction to enter judgment for the defendants. For the reasons stated above, I respectfully dissent.
I note the comments in the majority opinion regarding my dissent. Of course, the seeking of minority applicants will not preclude the existence of discriminatory treatment of a single individual. It is, however, a significant factor in a record which is devoid of evidence of racial discrimination. I do not regard a questionable finding that a post hoc exchange of correspondence really was only verisimilar on the part of Dr. Ackerman as a sufficient basis for saying that the discharge resulted from racial discrimination. An employer accused unjustly of discrimination unfortunately may tend to resort to unnecessary rationalization. This is an infirm basis for saying that there was indeed discrimination.