Rajapakse A. JAYASINGHE, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellee
760 F.2d 132
7th Cir.
1985
Check Treatment

Rajapakse A. JAYASINGHE, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant-Appellee.

No. 84-2028.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 1985. Decided April 12, 1985.

760 F.2d 132

SWYGERT, Senior Circuit Judge.

system. Simmons argues that if the two parts together would not have been exempted if viewed as a single transaction, the Commission ought not be allowed to break them apart and exempt one component.

The general point has obvious merit. Every transaction can be decomposed. If the Commission had treated the acquisition of the 17.5 mile stretch as 17.5 acquisitions of 1-mile stretches, and had exempted each one on the basis of limited scope, it would have been acting arbitrarily. But the sale of the 17.5 mile stretch was a separate transaction from the trackage-rights agreement by virtue of section 10905, and one the Commission had no discretion to turn down once the parties came to terms. Although the Commission could have consolidated the trackage-rights agreement and the line transfer procedurally, it could not have merged them substantively, because the statutory criteria of approval are different.

Regarding the merits of exempting the trackage-rights agreement, viewed separately from the section 10905 sale as it must be, we cannot fault the Commission either. “Limited scope” aptly describes a tiny stretch of line to be used by a tiny railroad for light traffic in a rural area; and we cannot see how the exemption here could interfere with any policies in the Interstate Commerce Act. The legislative history of section 10505 (exemption), well summarized in , indicates that Congress wanted the exemption power to be wielded boldly; the exercise in this case was exceedingly modest.

Simmons also raises a procedural issue. After the Commission granted the exemption, Simmons filed a petition to reopen the proceeding. See 49 U.S.C. § 10327(g)(1)(A); 49 C.F.R. § 1115.4. The Commission described the petition as one to revoke an exemption, and from this Simmons argues that the Commission placed too heavy a burden of persuasion on him. This argument is hard to follow. Anyone who files a petition to reopen a decision has the burden of persuading the tribunal that reopening is warranted; and nothing in section 10505(d), which governs the revocation of exemptions, suggests a higher burden of persuasion. It therefore makes no difference which provision (revocation or reopening) the Commission thought it was proceeding under. As a matter of fact the Commission applied the specific criteria governing reopening. It thus inquired whether Simmons had demonstrated any material error or changed circumstances, and found quite correctly that he had not and that therefore there was no basis for reopening the proceeding.

Finally, Simmons’ challenge to the Commission‘s grant of a construction exemption to the Cairo Terminal Railroad Company for work in integrating the newly acquired line into its existing business is frivolous, and ought not have been made. We remind the petitioner that frivolous arguments merely detract, and distract, from substantial ones.

AFFIRMED.

Posner, Circuit Judge, concurred with opinion.

P. Andrew Fleming, Bell, Boyd & Lloyd, Chicago, Ill., for plaintiff-appellant.

Gordon A. Etzler, Hoeppner, Wagner & Evans, Valparaiso, Ind., for defendant-appellee.

Before WOOD and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

Rajapakse Jayasinghe, a fifty-one-year-old male naturalized citizen from Sri Lanka, filed a Title VII action alleging that the Bethlehem Steel Corporation had denied him a promotion because of his sex and national origin, in violation of 42 U.S.C. § 2000e-2(a)(1) (1982). After a two-day bench trial, the case was taken under advisement. Almost two years later, the district judge entered judgment for Bethlehem, reasoning that Jayasinghe had failed to establish his qualification for promotion to a supervisory position. We affirm.

At trial Jayasinghe, a chemist, established that the two white, “Anglo,” female chemists promoted in his stead possessed inferior objective qualifications. Jayasinghe had earned a Master‘s Degree in chemistry, had briefly taught at the college level, had worked as a foreman in a chemical factory for six years, and had been employed as a “chemist technician” at Bethlehem since August 1973. Neither of the women promoted ahead of him had received a Master‘s Degree and both had considerably less job experience as chemists. Bethlehem introduced personnel documents and testimony tending to show that Jayasinghe lacked the interpersonal skills necessary for a supervisory position.

The district judge found that Jayasinghe had failed to prove by a preponderance of the evidence that he was qualified for the supervisory position he sought. The position required the employee to work closely with others. But, the “overwhelming preponderance of the evidence established that plaintiff was secretive, asocial and occasionally quarrelsome, and that plaintiff was not promoted to a supervisory position because of the reasonable, prevailing perception of him as one who did not work well with others.” Memorandum Opinion at 6. That the females who were promoted possessed the requisite “personality characteristics” was “established with equal clarity.” Id. Because Jayasinghe failed to establish his qualification for promotion, he did not succeed in establishing a prima facie case of discrimination; therefore, the district judge entered judgment for Bethlehem.

We hold that the district judge erred in defining a prima facie case of discrimination to include such subjective qualifications as “personality characteristics.” Nevertheless, we affirm because this error was harmless. 28 U.S.C. § 2111 (1982).

The template for analyzing Title VII discrimination claims was first announced by the Supreme Court in .1 In the first phase of analysis, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination, which includes, inter alia, a showing that he was “qualified” for the job sought. ; see also . This burden is “not onerous,” and it serves two separate policies. See . First, “it eliminates the most common nondiscriminatory reasons for the plaintiff‘s rejection.” . That is, the prima facie burden is a useful barrier that serves to screen out unsubstantiated discrimination charges. The employer is spared unnecessary litigation expense by its ability to file a motion to dismiss, a motion for summary judgment, or a motion for directed verdict where the plaintiff fails to distinguish his or her case from the ordinary, legitimate kind of adverse personnel decision—i.e., where the plaintiff is not in a protected class, where he or she has not applied for or is not qualified for the job, or where the desired position is not available or open. Cf. (defining elements of prima facie case).

Second, in view of the difficulty in proving discriminatory intent where the employer is too sophisticated to implicate itself or where the discrimination is subtle or unconscious, the prima facie threshold offers the plaintiff an opportunity to prove discriminatory intent indirectly. Cf. (explaining this aspect of McDonnell Douglas and applying the template to an age discrimination case). “[T]he prima facie case ‘raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.‘” (quoting ).

Requiring proof of subjective qualifications at the prima facie phase of analysis does not serve either of these policies. As for the first policy, surely it is uncommon for an employer to reject applicants with unrivaled or superior objective qualifications, as was the case here.2 As for the second, forcing the plaintiff at the outset to prove subjective qualifications subverts the indirect method of proof by requiring, in turn, proof of the subjective standards and motives of the employer. The purpose of the indirect method of proof is precisely to escape the necessity of showing direct subjective intent. See . In addition, the employer is in a better position to come forward with evidence of its own subjective job requirements. By removing subjective job requirements from the prima facie phase of analysis, the plaintiff may create a rebuttable presumption of discrimination without direct proof of subjective intent. Then, the burden would shift to the employer to explain its subjective requirements and motives. See . Thus, the policies behind the McDonnell Douglas template would best be served by limiting the prima facie showing of “qualification” to relative objective qualifications.3

Although the district judge erred in defining subjective job qualifications as an element of a prima facie case, the Supreme Court has indicated that such an error can be harmless. In , the Court was dismayed by the parties’ persistence in discussing the elements of a prima facie case after the plaintiff was already afforded a full trial on the merits. The Court noted that the prima facie threshold is no longer a relevant issue once the defendant has come forward with evidence of legitimate reasons for its actions that would rebut a prima facie showing of discrimination. . The relevant issue is whether the district judge reached, and without committing clear error decided, the ultimate question in this case: Did the defendant intentionally discriminate against the plaintiff? See . The appellate court must reverse, however, if it “cannot be certain that . . . [the district court‘s] findings of fact in favor of the . . . [defendant] were not influenced by its mistaken view of the law.” .

In the case at bar, the district judge did, de facto, reach and decide the ultimate issue, and we are certain that his mistaken view of the elements of a prima facie case did not influence his findings in favor of Bethlehem. Accordingly, the error below was harmless.

The parties were afforded a full trial on the merits, and nothing prevented Jayasinghe from introducing evidence establishing a prima facie case and then rebutting Bethlehem‘s explanation of its legitimate motives by showing them to be pretextual. Once Bethlehem came forward with evidence of its legitimate, subjective motives for denying promotion, the ultimate issue was joined as to whether to believe Jayasinghe‘s or Bethlehem‘s explanation of the latter‘s real motives. The district judge, properly placing the burden of proof on Jayasinghe, found that the “overwhelming” weight of the evidence supported Bethlehem‘s view of the facts. The district judge‘s only error was to label his ultimate finding that Jayasinghe was not objectively qualified for the promotion as a finding of “no prima facie case” instead of “no pretext.” Under the circumstances, this was a linguistic and taxonomic error, and we can be certain that it did not influence his findings of fact in favor of Bethlehem.4

Jayasinghe argues, however, that this error is reversible because it rendered the court‘s “subsidiary findings” inadequate, thereby violating its duty to make specific findings of fact. Fed.R.Civ.P. 52(a); see . This court in emphasized the district court‘s duty to make subsidiary findings and to address the evidence presented. See also . But this duty does not mandate an elaborate discussion of the McDonnell Douglas template; the template is a tool, not an end in itself. Once the ultimate issue has been reached as to which party‘s explanation of motive to believe, the only subsidiary finding necessary is what facts persuade the court to prefer one party‘s version.

Here, the district judge cited the testimony of Richard Reynolds as establishing that Bethlehem considered “personality factors” in promoting employees to supervisory positions. The judge went on to conclude that he believed Bethlehem‘s evidence that Jayasinghe was “secretive, asocial, and occasionally quarrelsome” and that this disqualified him from a promotion. Memoran-dum Opinion at 5-6. This sufficed to discharge the district judge‘s duty to “find the facts specially,” Fed.R.Civ.P. 52(a), and because these findings were not clearly erroneous, we affirm.

POSNER, Circuit Judge, concurring.

The district judge found that the plaintiff was unqualified for the promotion he sought, the finding is not clearly erroneous, and that ought to be the end of our consideration. Since the plaintiff must lose, it is irrelevant what he did or did not have to show to make out a prima facie case (); after trial, “questions regarding the establishment of a prima facie case are irrelevant,” . It thus is completely unnecessary for us to decide whether, in order to make out a prima facie case of employment discrimination, a plaintiff must show that he met not only the employer‘s “objective” qualifications for the position but also the employer‘s “subjective” qualifications for it. Judge Swygert, dissenting in a previous case, took the position that the plaintiff need only show that he met the employer‘s objective qualifications, see (dissenting opinion); and the Ninth and Tenth Circuits have taken the same position. See ; ; . Judge Friendly took the opposite position in a case that my brethren do not cite, (dictum). The cases, including two in this circuit, which hold that members of a comparison pool in a statistical analysis of discrimination need only possess objective qualifications (see ; ; ; ) are distinguishable. You cannot determine the subjective qualifications of hundreds or thousands of people for purposes of doing a statistical analysis; but you can determine the subjective qualifications of one plaintiff.

Granted, to make the plaintiff prove as part of his prima facie case that he meets the employer‘s subjective as well as objective qualifications gives the plaintiff a harder row to hoe; and maybe therefore Judge Swygert is right in the position he took in dissent in , and that he repeats today; the weight of authority supports his view. But I have my doubts. If a job requires leadership, or good looks, or a loud voice, or anything else that is not “objective“—that is, is not a paper qualification—it seems odd to say that the failure to give the job to the person with the advanced degree, or more years of service, or better grades in high school, or whatever else might count as an “objective” qualification for the job is, prima facie, racial or sexual or some other form of discrimination. We stray awfully far from the accepted meaning of “prima facie” case, even in the employment-discrimination field, when we say that the failure to promote a person is prima facie evidence that he was a victim of discrimination, when in fact there is no reason to think he was even qualified for the promotion, let alone that he was the best qualified for it.

But this is not the case to resolve the issue. However it is resolved, the plaintiff loses. Let us wait till the issue is inescapably presented.

Notes

1
As modified by the Court in , the template is as follows. In a disparate treatment action, a plaintiff establishes a prima facie case by proving by a preponderance of the evidence that he is a member of a protected class, that he applied and was qualified for a job for which the employer was seeking applicants, that he was rejected despite his qualifications, and that the employer either filled the position or continued to seek applicants from persons of plaintiff‘s qualifications. This creates a presumption of discrimination that may be rebutted by the employer by coming forward with evidence of legitimate reasons for its employment decision that raises a genuine issue of fact as to whether it discriminated against the plaintiff. The plaintiff then may demonstrate that the employer‘s purportedly legitimate motives were pretextual, and his burden to do so merges with his ultimate burden of persuading the court that he has been the victim of intentional discrimination. This ultimate burden remains at all times with the plaintiff.
2
The circuits that have removed subjective qualifications from the prima facie phase of analysis require a showing of only the minimum objective qualifications. (adopting Ninth Circuit rule, see infra), cert. denied, ; (only “basic objective criteria” need be met); cf. (Swygert, J., dissenting) (only minimum objective qualifications should be shown). This circuit, however, has stressed the need to weigh the plaintiff‘s relative qualifications at the prima facie phase of analysis. . Accordingly, the plaintiff‘s burden at the prima facie phase of analysis is to prove his relative objective qualifications. Jayasinghe easily met this burden by showing that his objective qualifications were superior to those possessed by the two persons who received promotions in his stead.
3
See supra note 2.
4
In his concurrence, Judge Posner contends that we need not decide whether the district court erred in its definition of a prima facie case; rather, we can simply decide that if any error was committed, it was harmless. As a general rule, a court should decide whether error was committed before considering whether it was harmless. For, one must define the parameters of error with some precision before the impact of the error can be assessed. Moreover, Judge Posner‘s reliance on Aikens is misplaced. Even though the Supreme Court in that case held that the elements of a prima facie case were no longer relevant once the defendant introduced rebuttal evidence at trial, the Court was nevertheless constrained to reverse because the district court‘s erroneous belief that the prima facie case required direct evidence of discriminatory intent may have affected its findings of fact. . Similarly, in the case at bar, we must consider whether the district court‘s definition of the prima facie case was premised on an erroneous view of the law and then consider whether such error was harmless.