Carmichael v. Birmingham Saw Works

• Citation: 738 F.2d 1126
• Decision Date: 09 August 1984
• Docket Number: No. 81-7815,81-7815
• Parties: 35 Fair Empl.Prac.Cas. 791, 35 Empl. Prac. Dec. P 34,587 Calvin Roderick CARMICHAEL, Plaintiff-Appellant, v. BIRMINGHAM SAW WORKS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1126

738 F.2d 1126

35 Fair Empl.Prac.Cas. 791,

35 Empl. Prac. Dec. P 34,587

Calvin Roderick CARMICHAEL, Plaintiff-Appellant, v. BIRMINGHAM SAW WORKS, Defendant-Appellee.

No. 81-7815.

United States Court of Appeals, Eleventh Circuit.

Aug. 9, 1984.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.

Odom, May & Debuys, James W. May, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and FAY, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

WISDOM, Senior Circuit Judge:

In this Title VII case, the trial court found that the defendant employer had not intentionally discriminated against the black plaintiff employee in hiring, promotions, or wage increases. The trial court did find a discriminatory initial wage disparity, and awarded back pay and attorney fees. We affirm the trial court's denial of injunctive relief, but we find errors of law and fact that require us to vacate and remand for further proceedings on the hiring, promotion, and wage claims, as well as on the issue of attorney fees.

I. Facts

The defendant, Birmingham Saw Works, is a family-run business with about 45 employees engaged in the making and repair of saws of all kinds. The plaintiff, Calvin Carmichael, heard by word of mouth that the defendant had work available, and applied for work in November 1975. Elmore Thuston, Vice President of the Saw Works, told the plaintiff that no positions were open. The plaintiff said he needed work, and Thuston agreed to hire him as a part-time janitor and stockman, on the understanding that he would move into a full-time position when one became open. In January 1976 the plaintiff was given a full-time position in the repair shop, where he remained until he resigned in August 1978. The plaintiff was paid the minimum wage ($2.10/hr. in 1975, $2.30/hr. in 1976) until April 1976; thereafter he received raises approximately every six months.

Carmichael first filed a charge with the Equal Employment Opportunity Commission in April 1976. In November 1978, the EEOC issued Carmichael a right-to-sue letter. He filed this suit in February 1979, alleging disparate treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1976 & Supp. V 1981). The case was tried by the court on January 27, 1981; the court rendered its decision on April 8. The court rejected the plaintiff's allegations of discrimination in hiring and promotions. The court found that the defendant did violate Title VII by starting the plaintiff in the repair shop at a lower wage than that paid to whites. The court recognized that the plaintiff was paid less than whites with comparable experience throughout his employment, but stated that "later raises given to plaintiff were not discriminatory and that the only wage discrimination results from the original disparity", which the court found to be 20 cents per hour. On April 29, after supplemental proceedings to determine the number of hours the plaintiff worked for defendant, the court awarded damages of 20 cents per hour for 6057.5 hours, or $1211.50, plus interest. In September, after a hearing, the court awarded attorney fees of $5400, based on a rate of $50 per hour for 90 hours. Both parties appealed, but the defendant later dismissed its appeal.

II. Standard of Review

The plaintiff has framed his attack on the trial court's findings largely in terms of whether the plaintiff made out a prima facie case of discrimination. We are mindful, however, of the Supreme Court's admonition that when a disparate treatment case is fully tried, as this one was, both the trial and the appellate courts should proceed directly to the "ultimate question" in the case: "whether the defendant intentionally discriminated against the plaintiff". United States Postal Service Board of Governors v. Aikens, 1983, 460 U.S. 711, ---- - ----, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403, 409-10; see also Lehman v. Trout, 1984, --- U.S. ----, 104 S.Ct. 1404, 79 L.Ed.2d 732. Intentional discrimination is an issue of fact. This Court may reverse a district court's finding of no intentional discrimination only if that finding is clearly erroneous, or is based on clearly erroneous subsidiary findings of fact or on a mistaken view of the law. Pullman-Standard v. Swint, 1982, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66; Lincoln v. Board of Regents, 11 Cir.1983, 697 F.2d 928, 939-40, cert. denied, 1983, --- U.S. ----, 104 S.Ct. 97, 78 L.Ed.2d 102. In such circumstances the appellate court must remand for further proceedings unless the record permits only one resolution of the case. Pullman-Standard, 456 U.S. at 291-92, 102 S.Ct. at 1791-92.

Accordingly, our inquiry in this case is whether the district court was clearly erroneous in finding no intentional discrimination in hiring, promotions, and raises. In performing this inquiry, however, it is useful to employ the evidentiary framework first developed in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Under that framework an employee must first present a prima facie case of discrimination, by eliminating "the most common nondiscriminatory reasons for the plaintiff's rejection". Texas Department of Community Affairs v. Burdine, 1981, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207. The employer must then "articulate some legitimate, nondiscriminatory reason for the employee's rejection". Id., 450 U.S. at 253, 101 S.Ct. at 1093. The employer does not have the burden of proving these nondiscriminatory reasons, but the employer must raise "a genuine issue of fact" by means of admissible evidence "legally sufficient to justify a judgment for defendant". Id., 450 U.S. at 254-55, 255 n. 9, 257-58, 101 S.Ct. at 1094 n. 9, 1096; Lincoln, 697 F.2d at 937. If the employer does so, the plaintiff may challenge the employer's defense as pretextual, or he may present evidence to show that "a discriminatory reason more likely motivated the employer". Aikens, 460 U.S. at ----, 103 S.Ct. at 1481-82, 75 L.Ed.2d at 410-11. In either case, the court moves on to the ultimate question of discriminatory intent, and the employee has the burden of proof. Id. If the employer does not meet its burden of articulation, however, the court should decide in favor of the employee. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Harris v. Birmingham Board of Education, 11 Cir.1983, 712 F.2d 1377, 1383-84. This result follows because the prima facie case creates only a "rebuttable presumption" of discrimination. Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7; see Mendez, Presumptions of Discriminatory Motive in Title VII Disparate Treatment Cases, 32 Stan.L.Rev. 1129 (1980). "The prima facie case method established in McDonnell Douglas was 'never intended to be rigid, mechanistic, or ritualistic.' " Aikens, 460 U.S. at ----, 103 S.Ct. at 1482, 75 L.Ed.2d at 410, quoting Furnco Construction Corp. v. Waters, 1978, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957. "[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race." Furnco, 438 U.S. at 577, 98 S.Ct. at 2950.

As the concurring opinion of Justice Blackmun makes clear, the majority opinion in Aikens must be read as reaffirming the framework established in McDonnell Douglas. "Under that framework, once a Title VII plaintiff has made out a prima facie case and the defendant-employer has articulated a legitimate, nondiscriminatory reason for the employment decision, the plaintiff bears the burden of demonstrating that the reason is pretextual, that is, it is 'not the true reason for the employment decision'.... As the Court's opinion today implies, ... this burden 'merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination'. [Burdine,] 450 U.S., at 256 ." Aikens, 460 U.S. at ----, 103 S.Ct. at 1483, 75 L.Ed.2d at 411-12 (Blackmun, J., concurring).

Our examination of the record reveals few, if any, articulated, legitimate, nondiscriminatory explanations for the defendant's treatment of Calvin Carmichael. Therefore, even though this case was tried to a conclusion, we will consider with regard to each claim whether Carmichael produced enough evidence to make out the requisite prima facie case that he was the victim of discrimination. Because the question is not whether the defendant did discriminate but rather whether the plaintiff is entitled to a presumption of discrimination, this inquiry is essentially a legal one. Gay v. Waiters & Dairy Lunchmen's Union Local 30, 9 Cir.1982, 694 F.2d 531, 539-46; see Comment, The Standard of Review in Title VII Disparate-Treatment Actions, 50 U.Chi.L.Rev. 1481 (1983).

III. Hiring

In deciding the plaintiff's hiring claim the district court relied on McDonnell Douglas. A complainant establishes a prima facie case of racial discrimination

"by showing (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 (footnote omitted). The district court held that the plaintiff failed to make out a prima facie case because "[t]here is no evidence that at the time plaintiff was hired that defendant had any vacancies for any position other than the one for which plaintiff was hired, or that thereafter defendant hired anyone except plaintiff for a position for which plaintiff was qualified and for which plaintif...