Johnson v. Bunny Bread Co.

• Citation: 646 F.2d 1250
• Decision Date: 16 April 1981
• Docket Number: No. 80-1215,80-1215
• Parties: 25 Fair Empl.Prac.Cas. 1326, 25 Empl. Prac. Dec. P 31,731 James JOHNSON and Benjamin White, Appellants, v. BUNNY BREAD COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1250

646 F.2d 1250

25 Fair Empl.Prac.Cas. 1326,

25 Empl. Prac. Dec. P 31,731

James JOHNSON and Benjamin White, Appellants, v. BUNNY BREAD COMPANY, Appellee.

No. 80-1215.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 16, 1981.

Decided April 16, 1981.

Lisa S. Van Amburg, oa/rebuttal, St. Louis, Mo., for appellants.

A. M. Spradling, III, oa, Cape Girardeau, Mo., for appellee.

Before ROSS and HENLEY, Circuit Judges, and RENNER, District Judge. ^*

HENLEY, Circuit Judge.

Appellants, James Johnson and Benjamin White, both black men, individually brought suit against appellee, Bunny Bread Company (Bunny Bread), alleging that Bunny Bread had engaged in discriminatory and unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964 §§ 703-704, 42 U.S.C. § 2000e-2 to 3. ¹ Following a bench trial, the district court ² found that each appellant failed to establish a prima facie case. Alternatively, assuming such a case was made by Johnson, the district court found the case was rebutted by a showing of non-pretextual justification. Accordingly, judgment was entered against each appellant. On appeal we affirm.

Background.

Appellants were hired by Bunny Bread in June, 1975. A referral by the Missouri Employment Security Office, made in response to Bunny Bread's request for applications of qualified black people, evidently led to their hiring. Each was hired as a cleaner/helper (helper), an entry level position requiring no particular skill but only that an individual be able-bodied, between the ages of 18 and 65, and capable of following instruction, safety rules, and work regulations. A helper's duties primarily consisted of cleaning walls, cleaning buckets, cleaning and sanitizing the brew tank, and substituting for any production line employee taking a break.

The labor agreement in force at Bunny Bread required that new employees serve a thirty day probationary employment period. Bunny Bread was a closed shop, and when this probationary period ended an employee had to join the Union if he wished to continue working. During their respective probationary periods, appellants spent most of their time performing cleaning duties and engaged in little production line work. Their performance during this period was satisfactory. At the expiration of their probationary periods, both appellants joined the Union.

After joining the Union Johnson's performance declined. On September 16, 1975 Johnson was discharged from his employment. This discharge was spawned by an incident involving Johnson and the plant supervisor, Rusty Schaffer. Immediately after his discharge Johnson filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Bunny Bread, in discharging him, had violated Title VII.

On September 16, 1975, not long after joining the Union, White was discharged. This discharge arose from an incident involving White and Perry Amelunke, an assistant supervisor. Immediately after this discharge, White filed a complaint with the EEOC, alleging that Bunny Bread, in discharging him, had violated Title VII. To rectify any injustice which might have resulted from appellants' discharges, a meeting was held with Bunny Bread management, Union representatives, Johnson and White in attendance, and Johnson and White were reinstated.

After their reinstatements, appellants continued to perform the tasks regularly performed by helpers and they spent more time on the production line than they had previously. After reinstatement but prior to January 15, 1976, Johnson filed a second complaint with the EEOC. In this complaint he alleged that Bunny Bread, in violation of Title VII, had imposed discriminatory working conditions on him and had harassed him in retaliation for his having filed a complaint with the EEOC. On January 15, 1976, Johnson was again discharged from his employment. This discharge arose from an incident involving Johnson and an assistant supervisor, John Buck.

On January 5, 1976, White filed a second complaint with the EEOC, alleging that Bunny Bread, in violation of Title VII, had imposed discriminatory working conditions on him and had harassed him in retaliation for his having filed a complaint with the EEOC. White resigned from Bunny Bread on January 21, 1976.

On October 11, 1978, appellants filed the present suit in district court. In main they alleged before the district court and allege here that Bunny Bread violated section 703 of Title VII by discharging them from employment and imposing discriminatory working conditions on them. ³ In text we address each of appellants' principal contentions.

A. Discharges.

Each appellant relies on a disparate treatment theory to establish a case of discriminatory discharge. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977). A case proceeding on this theory has three phases: first, plaintiff's establishment of a prima facie case; second, defendant's rebuttal of the prima facie case; and third, plaintiff's proof that defendant's rebuttal is a pretext to cover a discriminatory motive. McCosh v. City of Grand Forks, 628 F.2d 1058, 1062 (8th Cir. 1980).

To establish a prima facie case of discriminatory discharge in the present circumstances, each appellant must show that (1) he was a member of a protected class, (2) he was capable of performing the job, and (3) he was discharged from the job. See Osborne v. Cleland, 620 F.2d 195, 198 (8th Cir. 1980).

There was conflicting testimony concerning the events which led to appellants' terminations. After viewing the witnesses and hearing their testimony, the district court made the following findings:

1. Johnson was discharged in September, 1975 for laughing at the plant supervisor, Rusty Schaffer, while Schaffer was showing Johnson how to perform his job properly.

2. White was discharged in September, 1975 for leaving his job voluntarily and without permission from his supervisor.

3. Johnson was discharged in January, 1976 for swearing at an assistant supervisor in the presence of Rusty Schaffer.

4. White voluntarily resigned from Bunny Bread in January, 1976.

5. Bunny Bread gave no warnings with respect to discharges resulting from insubordination.

Unlike this court, the district court is in a superior position to determine the witnesses' credibility, and to resolve conflicts in the testimony. "We do not decide the case anew, but review the trial court's decision," Kellen v. ACF Industries, 629 F.2d 532, 534 (8th Cir. 1980), giving due regard to the opportunity of that court to judge the credibility of the witnesses, Bowers v. Kraft Foods Corp., 606 F.2d 816, 818 (8th Cir. 1979). With this in mind, a careful review of the transcript of the testimony and the entire record does not convince us that the district court's findings are clearly erroneous. Accordingly, we examine appellants' terminations in light of those findings.

Assuming Johnson established a prima facie case concerning his September, 1975 discharge, we must determine whether Bunny Bread has rebutted it by articulating a legitimate business reason for the discharge. Board of Trustees v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 296, 58 L.Ed.2d 216 (1978). "(A) rticulat(ing) some legitimate, nondiscriminatory (business) reason," McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), only requires an employer to present admissible evidence sufficient to raise a genuine factual issue as to whether plaintiff was discriminated against. Texas Department of Community Affairs v. Burdine, -- U.S. --, --, 101 S.Ct. 1089, 1097, 67 L.Ed.2d 207 (1981). Clearly, an employer bears no burden of persuading by a preponderance of the evidence that it was actually motivated by its proffered reason. Id.; contra, Vaughn v. Westinghouse Electric Corp., 620 F.2d 655, 657 (8th Cir. 1980), vacated, -- U.S. --, 101 S.Ct. 1504, 67 L.Ed.2d 808 (1981).

Bunny Bread presented detailed testimony of several witnesses, all to the effect that Johnson was fired for insubordination. As evidenced by the trial transcript, this testimony "fram(ed) the factual issue with sufficient clarity so that plaintiff (had) a full and fair opportunity to demonstrate pretext." -- U.S. at --, 101 S.Ct. at 1095. Since insubordination is a legitimate ground on which to base a discharge, Guy v. Swift & Co., 612 F.2d 383, 386 (8th Cir. 1980), it follows that Bunny Bread rebutted Johnson's prima facie case.

Johnson attempts to show that his alleged insubordination is a pretext for Bunny Bread's discriminatory motive. The burden is his to prove this by a preponderance of the evidence. -- U.S. --, 101 S.Ct. at 1094. Johnson relies on two methods of proof to establish pretext.

First, Johnson alleges that, unlike himself, insubordinate white employees received warnings before they were discharged. Such a showing would be indicative of pretext. McDonnell Douglas Corp. v. Green, 411 U.S. at 804, 93 S.Ct. at 1825; Osborne v. Cleland, 620 F.2d at 198. Title VII, although permitting discharge without a warning, will not tolerate discriminatory application of a warning policy. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283-84, 96 S.Ct. 2574, 2580, 49 L.Ed.2d 493 (1976). Here, the district court found that Bunny Bread never gave warnings prior to discharging employees for insubordination. This finding forecloses Johnson's attempt to prove pretext by showing Bunny Bread issued warnings in a discriminatory manner.

Next, Johnson relies on generalized statistics and urges that from these statistics an inference of a particular discriminatory intent should be drawn. These statistics show that (1) between 1973 and 1976 Bunny Bread hired, excluding appellants, three black employees of which two were involuntarily discharged and one voluntarily quit and (2) Bunny Bread's work force was 2.7% black while the surrounding city was...