Thomas v. Denny's, Inc.

• Decision Date: 25 April 1997
• Docket Number: No. 95-5146,95-5146
• Citation: 111 F.3d 1506
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1333, 70 Empl. Prac. Dec. P 44,657, 71 Empl. Prac. Dec. P 44,994, 97 CJ C.A.R. 600 Ronald K. THOMAS, Plaintiff-Appellant, v. DENNY'S, INC., a California corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1506

111 F.3d 1506

73 Fair Empl.Prac.Cas. (BNA) 1333,

70 Empl. Prac. Dec. P 44,657,

71 Empl. Prac. Dec. P 44,994, 97 CJ C.A.R. 600

Ronald K. THOMAS, Plaintiff-Appellant, v. DENNY'S, INC., a California corporation, Defendant-Appellee.

No. 95-5146.

United States Court of Appeals Tenth Circuit.

April 25, 1997.

D. Gregory Beldsoe, Tulsa, OK (G. Steven Stidham and Brian S. Gaskill of Sneed, Lang, Adams & Barnett, Tulsa, OK, with him on the briefs), for Plaintiff-Appellant.

J. Patrick Cremin (Frank M. Hagedorn and Judith A. Colbert with him on the brief) of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, OK, for Defendant-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO and EBEL, Circuit Judges.

SEYMOUR, Chief Judge.

Ronald K. Thomas brought this action under 42 U.S.C. § 1981 and 42 U.S.C. §§ 2000e et seq (Title VII) against his former employer, Denny's, Inc. (Denny's). Mr. Thomas alleged that he was denied promotions because of his race and in retaliation for the On appeal, Mr. Thomas contends the trial court erred in instructing the jury on the definition of one of the elements of a prima facie case of discrimination under section 1981. He also contends the court erred in refusing to give a "mixed-motives" instruction, in failing to submit the constructive discharge claim to the jury, and in limiting the damages to the two year period prior to the filing of the lawsuit. We agree that the court's definition of the prima facie case was erroneous, and that the jury should have been given a "mixed-motives" instruction. Accordingly, we reverse the jury verdict on the section 1981 claims and remand for further proceedings. We also agree that the court's ruling in favor of Denny's on the Title VII claims must therefore be reversed. However, we affirm the court's refusal to send the constructive discharge claim to the jury, and we conclude that the court's limitation on the period for which Mr. Thomas could recover damages was proper. ²

                filing of discrimination charges, and that his failure to be promoted resulted in his constructive discharge.  The discrimination and retaliation claims under section 1981 were tried to a jury, which returned a verdict for Denny's.  The district court ruled at trial that the evidence was insufficient to send the constructive discharge claim to the jury. 1  The court subsequently found against Mr. Thomas on his parallel Title VII claims
                

I

BACKGROUND

Mr. Thomas, who is an African American, began his employment at Denny's in 1978 as a dishwasher/busboy. He was promoted to the position of cook in 1979 and soon became a trainer for new cooks. He first expressed interest in promotion to management in 1981. The promotion procedure at Denny's was not particularly structured. The turnover was high and the company was always looking for managers. Ordinarily, a general manager would recommend to a district manager that a particular employee under the general manager's supervision should be considered for promotion. Mr. Thomas was mentioned by several of his general managers as a likely candidate for promotion to management, and was interviewed a number of times. In 1984, he was interviewed by district manager Michael Kearney. In 1987, he had interviews with Debbie Reynolds, a district manager, and with Kenneth Agorichas, the personnel manager. In 1989, he was interviewed by district manager Herbert Rapier, and in 1992 he interviewed with district manager Hassib Darweesh and human resources manager Tom Taylor. At the time of each interview with a district manager, Mr. Thomas had been recommended for promotion by at least one of his general managers. In each instance in which Mr. Thomas was not promoted, the position was filled with a non-African American.

Irene Johnson, a general manager, testified that she believed Mr. Thomas was qualified for promotion as early as 1983. She recommended him to Ms. Reynolds in 1987, to Mr. Agorichas in 1988, and subsequently approached Mr. Rapier to express her interest in promoting Mr. Thomas. Mr. Thomas Mr. Thomas filed a discrimination complaint with the Oklahoma Human Rights Commission in 1986. Ms. Johnson testified that when she brought up Mr. Thomas' name to Ms. Reynolds for promotion, Ms. Reynolds stated that they had a problem with Mr. Thomas, namely his suit against Denny's. When Ms. Johnson mentioned Mr. Thomas' promotion to Mr. Agorichas, he too mentioned that Mr. Thomas had a suit against Denny's. Mr. Rapier told Ms. Johnson that they would never allow Mr. Thomas to become a manager because he had sued Denny's. Mr. Kasim testified he told Mr. Darweesh that he wanted to take Mr. Thomas as a manager and asked why he had not been promoted. Mr. Darweesh stated: "Would you promote somebody who has sued?" Aplt. app. at 123.

                also presented the testimony of general manager Masood Kasim, who recommended Mr. Thomas to Ms. Reynolds several times, and to Mr. Rapier and Mr. Darweesh.  Both Ms. Johnson and Mr. Kasim testified that their personal experience in supervising Mr. Thomas was the basis for their belief that he was qualified to be promoted to management.  In addition, Shoib Ahmed, who worked with Mr. Thomas when they were unit aids for Ms. Johnson, testified that Mr. Thomas' performance as a unit aid was outstanding. 3  Mr. Thomas also presented evidence that his former manager, Joe Smith, stated during a state human rights investigation that Mr. Thomas was at least as promotable as candidates hired off the street into the management training program
                

Denny's presented evidence that Mr. Thomas did not answer questions well in his interviews, and was uncomfortable and unable to make eye contact. The interviewers felt that Mr. Thomas did not have a clear understanding of the goals and functions of management. Although Mr. Thomas was provided with management promotion packets, he did not complete them. These packets were not requirements for promotion, but were viewed as useful tools for assessing management potential. ⁴ Mr. Thomas was also advised to take some relevant college courses, which he did not do.

II FAILURE TO PROMOTE

Mr. Thomas argues the trial court improperly instructed the jury on the element of a prima facie discrimination case that requires a plaintiff to show he was qualified for the position sought. "We review a district court's refusal to give a requested jury instruction for abuse of discretion. However, we review de novo the question of whether the court's instructions, considered as a whole, properly state the applicable law and focus the jury on the relevant inquiry." York v. American Tel. & Tel. Co., 95 F.3d 948, 953 (10th Cir.1996) (citation omitted).

The framework for assessing discrimination claims that are not based solely on direct evidence is well known. The plaintiff has the initial burden of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the plaintiff does so, the defendant then has the burden of articulating a "legitimate, nondiscriminatory reason for the employee's rejection." Id. The plaintiff must then be afforded a full and fair opportunity to show that the employer's proffered reason was in fact a pretext for unlawful discrimination. See id. at 804, 93 S.Ct. at 1825. Although this analytical framework was first articulated in a Title VII case, it applies as well to claims under section 1981. See Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir.), cert.

denied, 513 U.S. 819, 115 S.Ct. 80, 130 L.Ed.2d 33 (1994).

To establish a prima facie case of failure to be promoted on the basis of [race] discrimination, a plaintiff must show: (1) that [ ]he was a member of a protected class; (2) that [ ]he was qualified for the position; (3) that [ ]he was rejected; and (4) that the position was filled by someone who was not a member of the protected class.

Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1469 (10th Cir.1992).

Here we are concerned with the second element, the requirement that a plaintiff show he was qualified for the position sought. The district court defined this element for the jury as follows:

To show that he was qualified, plaintiff must show that he possessed the necessary requirements for the position he sought. You should consider evidence concerning the education, training or experience necessary to perform the job. The plaintiff is not required to prove his qualifications were superior relatively [sic] to other employees in like positions. The plaintiff must prove, however, that he was at least as well qualified for the position as the person hired instead of him.

Aplt. app. at 19 (emphasis added). Mr. Thomas contends the court erred in adding the italicized sentence, arguing that it is directly contrary to this court's holding in Kenworthy. ⁵ We agree.

In Kenworthy we held the district court misapplied the law by holding that the defendant's proffered nondiscriminatory reasons for the plaintiff's rejection could prevent the plaintiff from establishing a prima facie case. 979 F.2d at 1469-70. We pointed out that relying on a defendant's reasons for the adverse action as a basis for ruling against a plaintiff at the prima facie stage raises serious problems under the McDonnell Douglas framework because it frustrates a plaintiff's ability to establish that the defendant's proffered reasons were pretextual. See id. at 1470. If at the prima facie stage the factfinder credits the reasons offered by the defendant for the failure to be promoted, the jury is not required to even consider the plaintiff's evidence on the critical issue of pretext. In Kenworthy and in MacDonald v. Eastern Wyoming Mental Health Ctr., 941 F.2d 1115 (10th Cir.1991), upon which Kenworthy relied, we were concerned with subjective qualifications. Such subjective criteria "are particularly easy for an employer to invent in an effort to sabotage a plaintiff's prima facie case and mask discrimination." Ellis v. United...