Smith v. Olin Chemical Corp.

• Decision Date: 18 July 1977
• Docket Number: No. 75-1024,75-1024
• Citation: 555 F.2d 1283
• Parties: 15 Fair Empl.Prac.Cas. 290, 36 A.L.R.Fed. 709, 14 Empl. Prac. Dec. P 7702 Varice SMITH, Jr., Plaintiff-Appellant, v. OLIN CHEMICAL CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1283

555 F.2d 1283

15 Fair Empl.Prac.Cas. 290, 36 A.L.R.Fed. 709,

14 Empl. Prac. Dec. P 7702

Varice SMITH, Jr., Plaintiff-Appellant, v. OLIN CHEMICAL CORPORATION et al., Defendants-Appellees.

No. 75-1024.

United States Court of Appeals, Fifth Circuit.

July 18, 1977.

Norbert A. Simmons, New Orleans, La., for plaintiff-appellant.

William J. Jefferson, New Orleans, La., for Norbert Simmons.

Wm. R. Tete, Lake Charles, La., William B. Dickinson, Stamford, Conn., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, WISDOM, THORNBERRY ^*, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, and FAY, Circuit Judges.

RONEY, Circuit Judge:

Plaintiff Smith brought this action alleging that his discharge from employment by Olin Chemical Corporation violated 42 U.S.C.A. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e et seq. The district court granted summary judgment for the corporation, and a panel of this Court reversed. Smith v. Olin Chemical Corp., 535 F.2d 862 (5th Cir. 1976). After rehearing en banc, we reverse the panel decision and affirm the grant of summary judgment for the defendant by the district court.

On February 8, 1975, Olin Chemical Corporation hired Smith as a probationary employee classified "Laborer Utility Pool." He performed his work satisfactorily, and after 90 days was given a physical exam required of the firm's permanent employees. The exam X-rays of the plaintiff's spine led the company doctor to the conclusion that Smith had "bone degeneration with a prognosis of possible aseptic necrosis or further bone degeneration in his spinal region" and as a result was "disqualified for manual labor at the plant." When the doctor told Smith of that conclusion, Smith responded by saying the diagnosis could be explained by his history of sickle cell anemia, a blood disease found almost exclusively in descendants of tribes living in malarial regions of Africa. Smith was discharged.

I. The Sickle Cell Anemia Theory

After the Equal Employment Opportunity Commission notified him of his right to sue, the plaintiff filed the complaint which began this action. The complaint alleged:

Defendant Olin Chemical Corporation has discharged plaintiff for reasons made unlawful by Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Specifically, (a) plaintiff was discharged by defendant because defendant suspected that plaintiff has sickle cell anemia, a disease common to Black Americans; . . . (c) plaintiff charges that his discharge on May 9, 1973, was unjust and for reasons made illegal by Title VII.

The theory of the complaint was straightforward. Classifying employees with sickle cell disease for discharge was "racial" and so violated the Act,42 U.S.C.A. § 2000e-2(a). The corporation moved for summary judgment, and both sides filed briefs and affidavits. The uncontested evidence established that the corporation did not have a policy of firing persons with sickle cell anemia, did not know Smith had sickle cell anemia when it decided to discharge him, and did not even suspect sickle cell was the cause of his back problems. An affidavit from the company doctor indicated the bone degeneration was the sole reason for the discharge. The district court granted the motion for summary judgment, concluding that the plaintiff had failed to create a genuine factual issue concerning the "racial or other impermissible classification," Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), which the complaint alleged was the basis for the discharge.

Based on the pleadings and affidavits before the court, the grant of summary judgment was correct. The moving party met its burden of establishing there were no genuine issues of fact with respect to the complaint's allegation that sickle cell anemia was the basis for firing Smith. See Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1014-1015 (5th Cir. 1967). Once the sickle cell trait was shown to be irrelevant, the plaintiff's claim collapsed, and the corporation was entitled to a judgment as a matter of law.

II. The Issues on Appeal Some Would Stop Here

In his brief on appeal, the plaintiff asserted new facts and a different theory to support the claim that his discharge violated Title VII. In this argument, he asserts that even if the discharge was based on his bad back, rather than sickle cell anemia, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) would be applicable. His brief contends that "if the presence of bone degeneration is used to automatically disqualify a worker from a position which involves manual labor, proportionately more black workers would be disqualified than workers of any other race . . . Therefore the defendant has the very heavy burden of showing that business necessity requires continuation of the discriminatory practice."

Some of the judges on this Court are reluctant to reach this issue. Alleging new facts on appeal is normally an insufficient means of resisting summary judgment. 6 Moore's Federal Practice P 56.27(1) (2d ed. 1976); see Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 n. 16, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). They would hold that the presence in the complaint of the conclusory allegation that the discharge was "for reasons made illegal by Title VII" did not adequately raise this second issue and should not have prevented the award of summary judgment. See de Lorraine v. MEBA Pension Trust, 499 F.2d 49, 51 (2d Cir.), cert. denied, 419 U.S. 1009, 95 S.Ct. 329, (1974). As Fed.R.Civ.P. 56(e) says:

an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Before the trial court, the plaintiff did not produce "specific facts" showing his general allegation posed a "genuine issue" for trial. To allow him to prevail would frustrate the purposes of summary judgment, and would encourage trial by ambush. Robin Construction Co. v. United States, 345 F.2d 610, 613-614 (3rd Cir. 1965).

III. Others Would Go On

The panel which originally heard this appeal, however, dealt with this additional claim. 535 F.2d at 864. Indeed, the panel's treatment of this issue in a way that controlled the outcome of the appeal is precisely what brought this case to the en banc court. Many of the judges on the Court think that the merits of the claim need to be considered here because

(a) The panel dealt with the issue and it is appropriate for the en banc court to reach for the point in order to clarify the Court's position on the matter, even though it would have been better not to reach it in the first instance, or

(b) The plaintiff's problems with representation noted in the last portion of this opinion call for the liberal pleading approach noted in Judge Godbold's opinion.

While Smith's pleadings are not a model of precision or clarity, the allegations regarding his discharge sufficiently raise an "effect" claim as well as an "intent" claim. This court has continuously given wide scope to Title VII in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities. Rowe v. General Motors Corp., 457 F.2d 348 (C.A. 5 1972), and cases collected therein at 354, n. 13. In the Title VII area, consistent with the full spirit of Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 28 L.Ed.2d 80, 85-86 (1957), we have been very liberal rather than technical in pleading requirements.

535 F.2d at 863-864 (footnotes omitted).

IV. The Bad Back Theory

The panel which first heard this case determined that if the plaintiff could prove that the good back requirement disqualified blacks disproportionately more than whites the defendant would then have to come forward with proof of business necessity. Because there was no evidence on either of these points, the case on appeal must be viewed as if the plaintiff could prove his discriminatory effects theory. The question then is whether, assuming that the preconditioning of employment for manual labor on the absence of bad backs or degenerative spinal conditions operates to discriminate against black Americans in substantially disproportionate percentages, an employer should be forced to satisfy an evidentiary burden of proving business necessity under Griggs. We think not.

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), held that Title VII of the Civil Rights Act of 1964 requires the elimination of artificial, arbitrary and unnecessary barriers to employment that operate to invidiously discriminate on the basis of race unless the employer can show that the discriminatory practice is related to job performance. Lack of discriminatory intent or purpose of the employer is irrelevant.

As the cases have developed, once discriminatory effect is shown, the employer must carry a heavy burden of proof to show business "necessity" for the employment practice. ¹ "(I)t involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed." Washington v. Davis, 426 U.S. 229, 247, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1975). See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

Few cases have dealt with the proposition that there are certain employment practices that will not trigger the requirement of proof from the employer. Indeed, some may assert that every practice which has a discriminatory effect requires some evidentiary proof from the employer to justify its use. We are not so ready,...