608 F.2d 563 (5th Cir. 1979), 77-1101, Burdine v. Texas Dept. of Community Affairs

Docket Nº:77-1101.
Citation:608 F.2d 563
Party Name:Joyce Ann BURDINE, Plaintiff-Appellant, v. TEXAS DEPARTMENT OF COMMUNITY AFFAIRS, Defendant-Appellee.
Case Date:December 17, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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608 F.2d 563 (5th Cir. 1979)

Joyce Ann BURDINE, Plaintiff-Appellant,



No. 77-1101.

United States Court of Appeals, Fifth Circuit

December 17, 1979

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[Copyrighted Material Omitted]

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Hubert L. Gill, Austin, Tex., for plaintiff-appellant.

John L. Hill, Atty. Gen. of Texas, Roland H. Allen, Richard Scott Rafes, Asst. Attys. Gen., Austin, Tex., for defendant-appellee.

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

Before JONES, CHARLES CLARK and GEE, Circuit Judges.

GEE, Circuit Judge:

This employment discrimination case grew out of events occurring within the Texas Department of Community Affairs in late 1972 and in the spring of 1973. As with all employment discrimination cases, the facts are crucial to the outcome.

Appellant Joyce Burdine, a forty-year-old female, was hired in January 1972 by the Texas Department of Community Affairs (TDCA) as an accounting clerk in the Public Service Careers Division (PSC). She had previously acquired several years of experience in the field of manpower training. The PSC's purpose was to provide training and employment opportunities in the public sector for under-skilled persons. Burdine was promoted in July 1972 to Field Services Coordinator. The Project Director of PSC at that time, Mack Nealy, assigned appellant additional duties in early October 1972 and put her in charge of the division when he was out of the office. Nealy resigned from his position in mid-October, and John Malone, Nealy's former supervisor, assigned appellant additional duties in November 1972. However, Burdine was not promoted or given an increase in pay. Burdine made several oral and written applications for the job of Project Director but received no reply of any kind. She performed the extra duties assigned to her for approximately six months.

The United States Department of Labor (DOL) totally funded PSC; in February 1973 DOL gave written notice to B. R. Fuller, the Executive Director of TDCA, that the PSC project would be terminated as of the end of March 1973 because of alleged inefficiencies in the program. 1 Appellant assisted Fuller in preparing a reply to the DOL charges; negotiations were begun to seek continuation of the project. DOL approved the continuation of PSC on March 20, 1973, but approval was conditioned on the division's meeting certain requirements. These requirements included, among other matters, the appointment of a permanent Project Director and a reorganization of and reduction in the staff. DOL gave no specific orders as to who should be retained, discharged, or appointed but required only that final staff selections meet with DOL's approval.

Fuller consulted with persons whom he considered to be key advisers in the agency and asked for their recommendations for the position of Project Director. Following these consultations, he selected Robert Watts for the post; at that time Watts worked for another division within TDCA. On the advice of subordinates, Fuller decided to terminate Burdine on April 2 and to retain Allen Walz, who had previously been under appellant's supervision, and to promote Walz to Project Coordinator, a position essentially filled by Burdine before her discharge. The decision to terminate Burdine came after her request, based on her assumption that PSC faced extinction, that she be considered for any suitable position within the agency. Her actions made it clear that she wished to remain with TDCA.

Soon after her termination and after she filed a charge of discrimination with the EEOC, the appellant was rehired by TDCA in July 1973 as a Planning Assistant with a monthly salary of $968, the exact salary given to Walz upon his promotion on April

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1, 1973. 2 Since her reinstatement, Burdine's promotions and increased job responsibilities have enabled her to achieve approximately the salary and duties of the male Project Director. Walz resigned in 1974.

Burdine complains that she has been discriminated against on account of sex in three ways: in TDCA's transferring Robert Watts instead of promoting her to Project Director; in TDCA's discharging her while retaining and promoting Allen Walz; and in TDCA's requiring her to perform essentially the same duties as the Project Director without compensating her equally with the male Project Directors who held the post both before her and after her. The trial court found against plaintiff on all three issues. We shall refer to portions of the court's memorandum opinion in the course of our discussion of each issue.

Plaintiff's Burden in Title VII Cases

Appellee contends that plaintiffs in Title VII 3 cases brought against a government agency must prove discriminatory intent and relies on Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). We rejected that blanket contention in Scott v. City of Anniston, 597 F.2d 897 (5th Cir. 1979). However, where plaintiff alleges disparate Treatment under Title VII, as does plaintiff-appellant here, "(p)roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977). 4 Therefore, we accept defendant-appellee's contention, although not for the reasons cited in its brief; proof must have been made at trial that defendant treated Ms. Burdine differently Because she is female.

Standard of Review

Although discrimination is a question of fact, it is also the ultimate issue for resolution in a Title VII case. Therefore, we as an appellate court must independently determine the merits of plaintiff's allegations, but we are bound by findings of subsidiary facts (evidentiary facts) that are not clearly erroneous. East v. Romine, Inc., 518 F.2d 332, 339 (5th Cir. 1975). We must also determine whether the ultimate finding is based on requisite subsidiary facts. Id. at 339, Citing Humphrey v. Southwestern Portland Cement Co., 488 F.2d 691, 694 (5th Cir. 1974).

Hiring the Project Director

Plaintiff contends that, by transferring Robert Watts, a male, instead of promoting her to Project Director, defendant discriminated against her on account of sex. 5 The elements of such cases are clear. In order to establish a prima facie case, plaintiff must show that (1) she belongs to a group protected by Title VII, (2) she applied for and was qualified for a job for which the employer was seeking applicants, (3) despite her qualifications she was rejected, and (4) after her rejection the position remained open and the employer continued to seek applicants among persons having plaintiff's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). These elements may differ, depending on the factual context. Id. at 802 n.13, 93 S.Ct. 1817. We believe plaintiff's proof at trial clearly

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met the Green Criteria. She is protected under Title VII from sex discrimination. She applied for the Project Director's job several times and was considered for the job, and her proof that she was qualified received implicit support from defendant's evidence. 6 The employer rejected her and, after the position remained unfilled for several months, hired a male for the position.

Defendant may refute plaintiff's prima facie case by articulating a legitimate, nondiscriminatory reason for the rejection. Id. This court requires defendant to prove nondiscriminatory reasons by a preponderance of the evidence. Turner v. Texas Instruments, 555 F.2d 1251, 1255 (5th Cir. 1977). This holding is not inconsistent with Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), which merely stated that defendant is not required to prove absence of discriminatory motive. Our holding in Turner simply states the obvious: "articulating" a legitimate reason involves more than merely stating fictitious reasons; Legally sufficient proof is needed before the trier of fact can find plaintiff's proof rebutted. Turner, supra at 1255.

In East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975), this court added another element to defendant's rebuttal in disparate treatment cases: defendant must prove that those he hired or promoted were somehow Better qualified than was plaintiff; in other words, comparative evidence is needed. An assertion, for example, that plaintiff had a poor work history will not suffice unless defendant can show by comparative factual data that those hired or promoted had a better work history. Id. at 339-40.

TDCA introduced testimony that the male who was hired as Project Director, Robert Watts, was better qualified than Burdine. Fuller testified that Watts had a college degree and had done advanced work; Fuller also cited Watts' experience in administration and his ability to work well with others. Burdine, on the other hand, attended college for only one year and had no degree; Fuller also felt that she had had some difficulty with her co-workers. While Fuller admitted that the Project Director need have no degree, we believe that the trial court's implicit evidentiary finding that Watts was better qualified is not clearly erroneous. Thus, the court's holding 7 that TDCA did not discriminate against Burdine in its failure to promote her to Project Director is affirmed. 8

Retention and Promotion of Walz and Discharge of Burdine

Applying East's authority to make an independent determination of plaintiff's allegations, we must disagree with the trial court's findings in regard to Burdine's discharge. The trial court, in addition to its holding quoted in note 7, Supra, held:

(T)he decision about who should be terminated, as required...

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