Nix v. WLCY Radio/Rahall Communications

• Decision Date: 13 August 1984
• Docket Number: No. 82-5769,82-5769
• Citation: 738 F.2d 1181
• Parties: 35 Fair Empl.Prac.Cas. 1104, 34 Empl. Prac. Dec. P 34,575 George W. NIX, Jr., Plaintiff-Appellee, v. WLCY RADIO/RAHALL COMMUNICATIONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1181

738 F.2d 1181

35 Fair Empl.Prac.Cas. 1104,

34 Empl. Prac. Dec. P 34,575

George W. NIX, Jr., Plaintiff-Appellee, v. WLCY RADIO/RAHALL COMMUNICATIONS, Defendant-Appellant.

No. 82-5769.

United States Court of Appeals Eleventh Circuit.

Aug. 13, 1984.

Claude H. Tison, Jr., Tampa, Fla., for defendant-appellant.

Stevan T. Northcutt, Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

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

WISDOM, Senior Circuit Judge:

George Nix brought this Title VII action after he was fired from his job as a disc jockey on WLCY Radio in Tampa. WLCY alleged that Nix was fired for violating a company rule against competitive moonlighting. Nix, who is black, alleged that the moonlighting accusation was a pretext for racial discrimination. After a bench trial, the court entered judgment for Nix and awarded him $20,000 in back pay and $8,216 in attorney fees. We hold that there is insufficient evidence to support the trial court's finding that Nix was fired because of his race, and we reverse.

I.

WLCY first hired Nix as a part-time radio announcer in late 1970. In 1971, after Nix filed an EEOC complaint, WLCY made him a full-time announcer. In addition to their regular salaries, announcers were often paid "talent fees" for work done on commercials. In January 1976, Nix made a commercial at WLCY for Air Florida. Nix believed that he was entitled to a talent fee for his commercial. He spoke to Tom Watson, the General Manager, about the fee, but he was unable to get an answer. On Wednesday, January 21, 1976, Nix left a typewritten note, along with a business card, on Watson's desk. The note asked Watson to "advise ... as to the necessary billing procedure" and added, "A copy of my production rate card is enclosed". The "production rate card" was a business card for Galaxy Productions. The card contained a list of prices for different lengths of commercials, and carried the names of George Nix and Ted Webb. Ted Webb was the air name of Henry Ruiz, another announcer at WLCY. Galaxy Productions was the name of a production venture that Webb and Ruiz had attempted to start in 1975, when Ruiz was not working at WLCY. The trial court found that Galaxy Productions had never been more than an idea, and had never done any actual business.

The card appeared to be a current business card, however. Watson reported to the station's executive committee that Nix and Ruiz had violated the station's moonlighting policy by producing commercials in competition with WLCY and by failing to report outside activities. The executive committee decided on Thursday to fire Nix and Ruiz, and Watson had final paychecks drawn for both.

On Friday, January 23, 1976, Watson met with Nix and Ruiz and told them they had been fired. In the ensuing discussion, it became clear that Ruiz had not been an employee of WLCY when he was involved in Galaxy Productions. Nix testified that he also told Watson that Galaxy had never done any business; Watson disputed this at trial. In any event, Watson fired Nix and gave him his final paycheck, but Watson tore up Ruiz's final paycheck and decided not to fire him.

On Monday Nix delivered a letter to Watson asking for reinstatement and explaining that Galaxy Productions was "DEFUNCT ... DISBANDED ...." Watson told Nix that the station would not reconsider the termination.

After his discharge, Nix filed a complaint with the NLRB alleging that he had been fired in retaliation for union activities. This claim was eventually dismissed. On March 18, 1976, Nix filed a complaint with the EEOC charging that his firing was racially motivated. Later that summer, WLCY hired a black to replace Nix. In July 1978 the EEOC issued a right-to-sue letter; Nix filed suit on October 12, 1978. The case was tried to the court on February 17-18 and April 10, 1981. On June 23 1981 the court issued its findings of fact and conclusions of law as to liability. The court found that Nix had established a prima facie case of racial discrimination because he was fired while Ruiz, who is white, was retained "under apparently similar circumstances". This placed upon WLCY the burden of articulating a legitimate, nondiscriminatory reason for the firing. Texas Department of Community Affairs v. Burdine, 1981, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207. The court found that the defendant met this burden by asserting that Nix was fired because the station believed he had violated its moonlighting policy. But the court found that this articulated reason was "incredible in the light of the facts found herein", "that said belief was not validly held", and that this reason "was in fact a pretext for prohibited racial discrimination under Title VII". The court found that "defendant terminated plaintiff on January 23, 1976, because of his race".

II.

A Title VII disparate treatment plaintiff must prove that the defendant acted with discriminatory purpose. Clark v. Huntsville City Board of Education, 11 Cir.1983, 717 F.2d 525, 529. Because direct evidence of discriminatory animus can be difficult to produce, it is often appropriate to analyze circumstantial evidence of discrimination according to the three-step procedure first developed in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Under that procedure, the plaintiff must create an inference of discrimination by establishing a prima facie case. If he does so, the defendant must "articulate some legitimate, nondiscriminatory reason for the employee's rejection". Id. at 802, 93 S.Ct. at 1824. The plaintiff may then attempt to show that these reasons are pretextual or may present other evidence to show that discriminatory intent was more likely the cause of the employer's actions. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The McDonnell Douglas-Burdine framework is a valuable tool for analyzing evidence in cases involving alleged disparate treatment. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126, at 1129 - 1130 [1984]. But that framework is only a tool. The "ultimate question" in a disparate treatment case is not whether the plaintiff established a prima facie case or demonstrated pretext, but "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. A McDonnell Douglas prima facie case creates an inference of discrimination by eliminating "the most common nondiscriminatory reasons for the plaintiff's rejection". Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94. If the employer's articulated reasons are then found to be pretextual, leaving no valid reason for the employer's actions, it is likely that discrimination was the true reason. See Aikens, 460 U.S. at ----, 103 S.Ct. at 1482, 75 L.Ed.2d at 409-410; id., 460 U.S. at ----, 103 S.Ct. at 1483, 75 L.Ed.2d at 412 (Blackmun, J., concurring). "[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 Construction Corp. v. Waters, 1978, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957. But when the plaintiff fails to make out a prima facie case, a showing of pretext, without more, will not necessarily support a finding of racial discrimination. "Only when defendants' articulated reason is pretext 'for accomplishing a racially discriminatory purpose' will the plaintiff recover.... The court thus may not circumvent the intent requirement of the plaintiff's ultimate burden of persuasion by couching its conclusion in terms of pretext; a simple finding that the defendant did not truly rely on its proffered reason, without a further finding that the defendant relied instead on race, will not suffice to establish Title VII liability." Clark, 717 F.2d at 529 (citation and footnote omitted).

Intentional discrimination is an issue of fact. Pullman-Standard v. Swint, 1982, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66. "[T]his Court may reverse a finding of intentional discrimination only if the finding is clearly erroneous." Lincoln v. Board of Regents, 11 Cir.1983, 697 F.2d 928, 940, cert. denied, 1983, --- U.S. ----, 104 S.Ct. 97, 78 L.Ed.2d 102. The "clearly erroneous" standard of review requires substantial deference to the findings of the district court, but "[o]ur deference to the district court is not unlimited, ... and we will hold a finding of fact clearly erroneous if the record lacks substantial evidence to support it". Id. at 939. Although we find some support for the district court's conclusion that the articulated reason for Nix's firing was not the true reason, we find no evidence sufficient to sustain the court's conclusion that the true reason was racial discrimination.

III.

There is no direct evidence of racial animus on the part of WLCY or its employees. WLCY contends that this absence of direct evidence is fatal to Nix's claim. WLCY recognizes that discriminatory discharge may be established from circumstantial evidence, but asserts that this cannot be done when the terminated minority-group employee is replaced by another member of the same minority group. Because Nix was replaced by a black, WLCY argues that Nix can prevail only if he produces direct evidence of discriminatory purpose.

This argument is unpersuasive. "The prima facie case method ... 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, 438 U.S. at 577, 98 S.Ct. at 2943. A prima facie case of discriminatory discharge...