Flowers v. Crouch-Walker Corp.

Citation552 F.2d 1277
Decision Date19 April 1977
Docket NumberCROUCH-WALKER,No. 76-1625,76-1625
Parties14 Fair Empl.Prac.Cas. 1265, 14 Empl. Prac. Dec. P 7510 Robert FLOWERS, Plaintiff-Appellant, v.CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Harold M. Brody, Chicago, Ill., for plaintiff-appellant.

John J. Henely, Chicago, Ill., for defendant-appellee.

Before CASTLE, Senior Circuit Judge, and TONE and WOOD, Circuit judges.

CASTLE, Senior Circuit Judge.

Plaintiff brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981, alleging that the defendant Crouch-Walker Corporation ("Crouch-Walker") discharged him from a bricklaying job in February, 1972, on account of his race. The district court granted the defendant's motion to dismiss the action at the close of the plaintiff's presentation of evidence. Plaintiff appeals, 1 asserting inter alia that the court's holding that he was discharged solely for a nondiscriminatory reason was unsupported by the evidence. We reverse.

I.

The evidence introduced at trial, apart from a joint exhibit, consisted entirely of the plaintiff's testimony. The evidence may be summarized briefly. Plaintiff, a black bricklayer, was first employed by Crouch-Walker as an apprentice bricklayer in 1968 while attending trade school. He worked steadily for the defendant from that time until his discharge on February 24, 1972. In that period, he worked on five construction projects for Crouch-Walker and received compliments on the quality of his work by the defendant's supervisory personnel. He became a journeyman bricklayer in May, 1971.

Plaintiff was transferred by Crouch-Walker to the construction site of the Standard Oil Building in Chicago on Monday, February 21, 1972, where he was assigned work by Paul Kolkau, a foreman for whom the plaintiff had never worked previously. About 20 minutes after plaintiff had begun work, Kolkau told plaintiff that two rows of blocks he had laid were high in relation to previous work and ordered him to take them down. Plaintiff redid the work. Later that morning, Kolkau examined plaintiff's tools and told plaintiff that one of them, a sledge jointer, 2 was slightly worn. Plaintiff borrowed a jointer from a friend to use for the rest of the day and purchased a new one that evening. Plaintiff was assigned an apprentice on his first day at the Standard Oil Building site, the only apprentice at the site. Plaintiff was responsible for supervising the apprentice's work, and the apprentice remained with him until his discharge.

Plaintiff continued working at the project without notable incident for three more days and was discharged at the end of the day Thursday. Kolkau told plaintiff there was a shortage of brick work on the job. Plaintiff later called John Crouch, whom he identified as president of Crouch-Walker, to ask why he had been laid off. After asking for and receiving some time to look into the matter, Crouch told plaintiff that the owners of the Standard Oil Building had not been satisfied with his work. Plaintiff was called back to work by Crouch-Walker in June, 1972, and worked for the defendant for another year and a half.

On cross-examination, plaintiff admitted that layoffs are normal and customary in the bricklaying trade, because the amount of work sometimes fluctuates over the period of a construction project. Plaintiff also admitted that at least three other bricklayers who worked at the Standard Oil Building site were black. However, plaintiff testified on redirect examination that he saw two new white bricklayers at the site on Friday, the day after he was discharged.

The trial record also included a joint exhibit which was identified as a record of the persons who worked at the Standard Oil Building site. The exhibit indicates that the two men whom plaintiff identified as having been transferred to the site the day after his discharge did work at the site sometime during the week when plaintiff was there. The exhibit also indicates that 12 persons worked at the site during that week, 13 persons worked there the following week, and 14 persons worked at the site the next week.

Crouch-Walker moved to dismiss the action at the close of plaintiff's presentation of evidence on the ground that the plaintiff had failed to establish a case of discrimination. The court granted the motion and asked the defendant to submit proposed findings of fact and conclusions of law. Defendant's proposed findings and conclusions stated that the available brick work at the Standard Oil Building site was reduced at the time plaintiff was discharged, that the plaintiff's work at the site was unsatisfactory and not of the quality of the work of the other bricklayers there, and that he was laid off in the face of the work slowdown solely because his performance had been unworkmanlike. The district court adopted the proposed findings and conclusions without change.

II.

Plaintiff asserts on appeal that the evidence introduced below established a prima facie case of racial discrimination and that he has been denied a fair hearing on his claim under the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In McDonnell Douglas, the Supreme Court established a specific order and allocation of proof in private non-class actions challenging employment discrimination. 3 If the plaintiff establishes a prima facie case of racial discrimination, the burden must shift to the employer "to articulate some legitimate, nondiscriminatory reason" for his action. Id. at 802, 93 S.Ct. at 1824. If the employer meets its burden of proof in response to the prima facie case, the plaintiff must be afforded a fair opportunity to show that the employer's stated reason for his action was in fact pretext. Plaintiff submits that the defendant has not articulated a nondiscriminatory reason for his discharge and that, even if the defendant has done so, plaintiff has not been afforded a fair opportunity to show that the reason was pretext.

Putting aside for the moment the question of adequacy of proof, we cannot agree that the defendant has failed to articulate a nondiscriminatory reason for plaintiff's discharge. As discussed more fully hereinafter, plaintiff rests his charge of discrimination on the theory that he was discharged as a black to permit one or more white bricklayers to perform the same job. In his opening statement, defendant's counsel stated that plaintiff's own testimony would show that he was discharged in the course of a work slowdown because his work had been unsatisfactory at the Standard Oil Building site. The same reason for the discharge was set forth in the findings of fact and conclusions of law proposed by the defendant and adopted by the court. We hold that a relative inferiority of plaintiff's work at the Standard Oil Building site in the course of a work slowdown would constitute a nondiscriminatory reason for discharge sufficient to rebut the plaintiff's charge of discrimination. Moreover, there is nothing to preclude the defendant's reliance on evidence appearing in the plaintiff's case to establish a nondiscriminatory reason for his action. As the Ninth Circuit recognized in Sime v. Trustees of California State University and Colleges, 526 F.2d 1112 (9th Cir. 1975), McDonnell Douglas does not require a three-step "judicial minuet" of procedure under which the defendant must come forward with evidence if certain facts in plaintiff's case establish a prima facie case of discrimination. Id. at 1114. The court held that, even if the plaintiff has met his initial burden, a motion for dismissal may be granted at the close of plaintiff's case under Fed.R.Civ.P. 41(b) if the defendant in turn has met its burden out of the mouths of the plaintiff's witnesses.

Plaintiff argues that the granting of a Rule 41(b) motion under such circumstances deprives the plaintiff of his opportunity to show that the reason assigned for the action taken was pretextual. In some cases, that may be so. However, in Sime, the defendants articulated nondiscriminatory reasons for their action in argument on the Rule 41(b) motion, and the plaintiff did not then or at any other time assert to the trial court that she was entitled to show that those reasons were pretextual. The Ninth Circuit held that plaintiff was not entitled to reversal because she had not presented the procedural claim to the trial court in the first instance. In the instant case, plaintiff was informed of defendant's asserted justification for discharging him by the opening statement of defendant's counsel, and he was alerted then to the fact that defendant hoped to establish this justification by plaintiff's own testimony. The opportunity to show that defendant's asserted reason for discharging him was pretext therefore was available to the plaintiff in his case in chief. By failing to offer any proof on this point, he created a risk that his own evidence would establish the defendant's justification and would leave the burden of proof on himself at the close of his presentation of evidence. We therefore hold that plaintiff was not procedurally prejudiced by the granting of the Rule 41(b) motion.

In disposing of plaintiff's procedural claim, we have assumed that the evidence presented established a prima facie case of discrimination. We have thus anticipated the procedural question to permit an uninterrupted analysis of the evidence and to establish a framework for that analysis. Under our procedural holding, we are not limited in this appeal to the question of whether plaintiff's evidence created a prima facie case but must determine whether that evidence supported the defendant's justification.

III.

Plaintiff asserts that a prima facie case of racial discrimination was established by the following facts appearing in the record: (1) that...

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