660 F.2d 1327 (9th Cir. 1981), 80-5106, Nanty v. Barrows Co.

Docket Nº:80-5106.
Citation:660 F.2d 1327
Party Name:Herbert NANTY, Plaintiff-Appellant, v. The BARROWS COMPANY, formerly Barrows Furniture Company, Defendant-Appellee.
Case Date:November 09, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1327

660 F.2d 1327 (9th Cir. 1981)

Herbert NANTY, Plaintiff-Appellant,


The BARROWS COMPANY, formerly Barrows Furniture Company,


No. 80-5106.

United States Court of Appeals, Ninth Circuit

November 9, 1981

Page 1328

[Copyrighted Material Omitted]

Argued and Submitted Aug. 12, 1981.

Rehearing and Rehearing En Banc Denied Dec. 28, 1981.

Page 1329

Alice L. Bendheim, Bendheim, Mote & Monson, Phoenix, Ariz., for plaintiff-appellant.

Stephen W. Pogson, Evans, Kitchel & Jenckes, Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona (Phoenix).

Before SKELTON, [*] Senior Judge, U. S. Court of Claims, CHOY and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge.

Herbert Nanty is a Native American, a full blooded Apache. He was denied a job as a furniture delivery truck driver by The Barrows Company. Nanty filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that Barrows discriminated against him in its hiring decision on the basis of race. Following a short trial, the district court, 483 F.Supp. 101, entered judgment for Barrows.


The events leading up to this lawsuit are not seriously disputed. On September 23, 1975, Barrows placed an order with the Arizona Department of Economic Security Job Bank Service (the "Job Bank") for a furniture delivery truck driver. The Job Bank is a statewide service which matches prospective employers with prospective employees. An employer placing an order with the Job Bank is required to list the qualifications for the job it wishes to fill. When Barrows placed its order for a furniture delivery truck driver, it listed three qualifications: experience in handling and unloading furniture, a Class A chauffeur's license, and a good driving record.

On September 25, two days after Barrows placed its order, Nanty contacted the Job Bank, seeking employment as a truck driver. Nanty appeared, at least to those at the Job Bank, to satisfy the three listed qualifications, and they referred him to Barrows. Nanty went to the Barrows warehouse that same day to apply for the job. When he arrived, and presented his job referral slip,

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he was told that the job had been filled. 1 He was not asked any questions about his qualifications, was not interviewed and was not given an application. Three days later, on September 28, Barrows hired two furniture delivery truck drivers, both of whom were Caucasian. Barrows did not withdraw its order with the Job Bank for a furniture delivery truck driver until October 1, 1973.

After having been given permission by the Equal Employment Opportunity Commission to bring suit against Barrows for employment discrimination, 2 Nanty filed suit in district court.


Nanty claims that he received disparate treatment from Barrows in its adverse hiring decision. The general standards that govern the analysis of claims of disparate treatment under Title VII were laid down in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

In McDonnell Douglas, the Supreme Court established the analytic process to be used for evaluating evidence of discrimination in Title VII cases. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The "order and allocation of proof" for determining whether there has been discrimination are as follows: (1) the plaintiff must present evidence sufficient to make out a prima facie case of discrimination; (2) the defendant must then "articulate" a legitimate, nondiscriminatory reason for its decision not to employ the plaintiff; and (3) the plaintiff must then be given the chance to prove that the "assigned reason" was "a pretext or discriminatory in its application." McDonnell Douglas, 411 U.S. at 807, 93 S.Ct. at 1826. 3 Thus, if the plaintiff fails to establish his prima facie case, the defendant is entitled to judgment. On the other hand, if the plaintiff establishes his prima facie case, and the defendant fails to "articulate" a legitimate, nondiscriminatory reason for its adverse employment decision, the third step is inapplicable, and the plaintiff has established unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Finally, if the plaintiff makes out his prima facie case, and the defendant "articulate(s)" a reason for its adverse employment decision, the resolution of the issue of whether there has been unlawful discrimination depends on whether the plaintiff carries his burden at step three.

The Court in McDonnell Douglas also explained the substantive standards applicable at each of the three steps in the analytic process. The Court there set forth the four elements necessary for individual complainants to establish a prima facie case of race discrimination under Title VII; the plaintiff must show:

1. that he belongs to a racial minority;

2. that he applied and was qualified for a job for which the employer was seeking applicants;

3. that, despite his qualifications, he was rejected; and

4. that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant's qualifications.

411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted).

Page 1331

The Supreme Court has made it clear, however, that the McDonnell Douglas test is not the exclusive method by which a plaintiff may establish his prima facie case. Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed. 396 (1977). The plaintiff may meet his initial burden simply by "offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act," id., i. e., evidence that indicates that "it is more likely than not" that the employer's actions were based on unlawful considerations. Furnco Construction Corp., 438 U.S. at 576, 98 S.Ct. at 2949. The Court recently explained the plaintiff's initial burden:

The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderence of the evidence that she applied for an available position, for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. The prima facie case serves an...

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