Daye v. Harris, 79-2371

• Decision Date: 15 January 1981
• Docket Number: No. 79-2371,79-2371
• Citation: 655 F.2d 258
• Parties: 24 Fair Empl.Prac.Cas. 1248, 24 Empl. Prac. Dec. P 31,459, 210 U.S.App.D.C. 145 Marian Aldena DAYE, Appellant, v. Patricia R. HARRIS, Secretary, Department of Health and Human Services.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 258

655 F.2d 258

24 Fair Empl.Prac.Cas. 1248,

24 Empl. Prac. Dec. P 31,459, 210 U.S.App.D.C. 145

Marian Aldena DAYE, Appellant, v. Patricia R. HARRIS, Secretary, Department of Health and Human Services.

No. 79-2371.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 8, 1980.

Decided Jan. 15, 1981.

June D. W. Kalijarvi, Washington, D. C., for appellant. Mark Andrews, Washington, D. C., also entered an appearance for appellant.

Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and Diane M. Sullivan, Asst. U S. Attys., Washington, D. C., were on the brief, for appellees.

Before MacKINNON and WALD, Circuit Judges and JUNE L. GREEN ^*, United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge.

Ms. Daye, a white Clinical Specialist in psychiatric nursing at St. Elizabeths Hospital, instituted this action under Title VII of the Civil Rights Act of 1964 ¹ alleging that she was the victim of racial discrimination in the course of her employment at the hospital. Specifically, Daye alleged that she was not selected for two positions at St. Elizabeths Hospital because of her race in violation of Title VII, 42 U.S.C. § 2000e-16(c). She requested relief in the form of retroactive promotion, back pay, and benefits. The district court found that Daye failed to make out a prima facie case of racial discrimination under Title VII and granted judgment to the defendant. Daye now appeals from that district court decision. Because we conclude that the district court applied an inappropriate legal standard in ruling that it was critical for the plaintiff-appellant to prove discriminatory motive on the part of the defendant-appellee as an element of her prima facie case, we reverse the decision and remand it to the trial court for reconsideration.

I

This suit revolves around the allegedly irregular procedures by which Ms. Meyers, a black Supervisory Psychiatric Nurse at St. Elizabeths, was promoted first to the position of Temporary Associate Division Chief Nurse ("TADCN") and then to the post of Division Chief Nurse ("DCN") in the Division of Medical and Surgical Support Programs ("MSSP") at St. Elizabeths in October, 1975 and June, 1976, respectively. Daye argued below that the retiring DCN, Areta Ludke (white), and the Medical Director of MSSP, Dr. Eleanor Makel (black), conspired to rig the Hospital Merit Promotion Plan ("HMPP") ² so as to elevate Meyers, a black R.N., into the DCN post ahead of Daye, a white nurse with two master's degrees, and other more qualified white nurses. ³

According to Daye, the scheme to promote Meyers began in 1973 when Ludke removed Meyers from the night shift so that she could take advantage of training programs. However, no blatant favoritism was shown until 1975, when Ludke became seriously ill, leading to her early retirement on disability in August, 1975. Daye alleged that at that time Ludke and Makel undertook a campaign to simultaneously increase Meyers' QRB score by granting her favorable work experience ⁴ and awards, ⁵ while reducing the scores of her closest competitors by downgrading their performance evaluations. ⁶

This "scheme" worked. Meyers scored highest on the HMPP criteria, and the QRB selected her for both the TADCN and DCN positions. Daye filed an administrative complaint with the EEO following her non-selection for the TADCN position, alleging that she had been the victim of racial discrimination. It was amended to include the alleged discrimination involved in her non-selection for the DCN post, and her rating on her next performance evaluation. After the administrative proceedings terminated unfavorably to her position, ⁷ Daye initiated this lawsuit.

Daye presented these facts and a chart showing that black nurses at St. Elizabeths received a disproportionate number of promotions ⁸ to the trial court as evidence of her racial discrimination claim. The defendant countered with evidence that Daye lacked experience in acute medical care, had no recent supervisory experience, ⁹ and had had both personal and professional difficulties with Ludke. ¹⁰

II

The district court, after making detailed findings of fact, entered judgment for the defendant on the ground that plaintiff failed to present a prima facie case of racial discrimination. Pointing out that the Supreme Court requires a plaintiff to prove "that the defendant engaged in actions from which it can be inferred that it is more likely than not that such actions were based on one or more discriminatory criteria forbidden by Title VII of the Civil Rights Act," Daye v. Califano, supra, slip op. at 10-11; J.A. 14-15, the court held that plaintiff-appellant failed to meet this standard because "(t)here is no evidence from which it can be inferred that it was more likely than not that racial considerations were involved(.)" Id. at 11-12; J.A. 15-16.

Daye appeals from this judgment, arguing that as a matter of law, she met the requirements for a prima facie case articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Appellant contends that she need not show evidence of impermissible racial considerations to present a prima facie case; rather, a claimant need only meet the specific burdens set out in McDonnell Douglas:

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

411 U.S. at 802, 93 S.Ct. at 1824. Once this burden has been met, appellant avers, the court must infer that, more likely than not, racial discrimination exists. At that point, the burden shifts to the defendant to disprove that inference.

In this case, appellant maintains, the criteria established in McDonnell Douglas have been met. ¹¹ Therefore, the trial judge should have evaluated not whether Daye presented independent evidence of impermissible racial considerations, but rather whether the appellee's evidence of the lack of such impermissible motivations was sufficient to overcome the presumption raised by the establishment of a prima facie case. Further, appellant claims, the evidence presented by the appellee was insufficient as a matter of law to overcome the inference of racial discrimination. Thus, Daye asks this court to reverse the trial court and enter judgment, with appropriate damages, in her favor.

III

This court outlined the components of a prima facie case under Title VII in its recent decision in Aikens v. United States Postal Service, 642 F.2d 514 (D.C.Cir.1980). Aikens makes clear that "the prima facie case in a suit alleging individual discrimination does not require a showing of discriminatory motive." Id., at 520. Rather, this court concluded that "(i)n essence, McDonnell Douglas requires an individual bringing suit under Title VII to demonstrate that the alleged discrimination did not result from a lack of qualifications or the absence of a vacancy in the job sought." Id., at 517. This prima facie case "raises an inference of discrimination," shifting to the government the burden of "meet(ing) (the plaintiff's) prima facie showing by articulating a legitimate, nondiscriminatory reason for its failure to promote (the plaintiff.)" Id., at 520. If the government overcomes its "burden ... 'of proving that (they) based (the) employment decision on a legitimate consideration, and not an illegitimate one such as race,' " id., at 520 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)), the plaintiff then has "the opportunity to introduce evidence that the justifications offered by the (defendant) are merely pretexts for discrimination." Id.

Thus, the district court clearly erred in holding that "there is no evidence from which it can be inferred that it was more likely than not that racial considerations were involved(.)" Daye v. Califano, supra, slip op. at 11-12; J.A. 15-16. Appellant's failure to present direct evidence of illegal racial motivation did not preclude her from meeting the burden of establishing a prima facie case. A court must infer the requisite impermissible motivation, as in Aikens, from evidence of actions meeting the McDonnell Douglas criteria. The government has never disputed that Daye presented that necessary quantum of evidence.

IV

A prima facie showing does not in itself prove illegal discrimination, but rather "is simply proof of actions ... from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible considerations." Furnco Construction Corp. v. Waters, 438 U.S. 567, 579-80, 98 S.Ct. 2943, 2950-51, 57 L.Ed.2d 957 (1978). Though the burden of persuasion always remains with the plaintiff in Title VII cases, the burden of going forward with the evidence shifts to the defendant once the plaintiff makes a prima facie showing. Bundy v. Jackson, supra, at 950.

In this case, on this record, it is impossible to conclude with certainty that the trial court found that the appellee successfully met her burden of going forward with the evidence. ¹² Since the trial court applied an erroneous standard of law and concluded that appellant had not established a prima facie case, it never explicitly made findings on whether appellee's evidence was sufficient to meet the burden of articulating legitimate reasons for Meyers' selection. Thus, although the court found "there was no evidence from which it can be inferred that it was more likely than not that racial considerations were...