Dillon v. Coles

• Citation: 746 F.2d 998
• Decision Date: 29 October 1984
• Docket Number: Nos. 83-5831,83-5803,s. 83-5831
• Parties: 36 Fair Empl.Prac.Cas. 159, 35 Empl. Prac. Dec. P 34,741 Doreen A. DILLON, Appellant in 83-5831, v. Ricardo COLES, individually and in his official capacity as the Director of Youth Forestry Camp Number 1, Youth Forestry Camp Number One, Helen O'Bannon, individually and in her capacity as the Secretary of the Pa. Dept. of Public Welfare, and The Pa. Dept. of Public Welfare. Appeal of Ricardo COLES, Youth Forestry Camp Number One, and the Pennsylvania Department of Public Welfare.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 998

746 F.2d 998

36 Fair Empl.Prac.Cas. 159,

35 Empl. Prac. Dec. P 34,741

Doreen A. DILLON, Appellant in 83-5831, v. Ricardo COLES, individually and in his official capacity as

the Director of Youth Forestry Camp Number 1, Youth Forestry

Camp Number One, Helen O'Bannon, individually and in her

capacity as the Secretary of the Pa. Dept. of Public

Welfare, and The Pa. Dept. of Public Welfare.

Appeal of Ricardo COLES, Youth Forestry Camp Number One, and

the Pennsylvania Department of Public Welfare.

Nos. 83-5831, 83-5803.

United States Court of Appeals,

Third Circuit.

Argued Aug. 13, 1984.

Decided Oct. 29, 1984.

John Stember (argued), Daniel L. Haller, Neighborhood Legal Services Association, Pittsburgh, Pa., for appellant/cross-appellee Doreen Dillon.

Leroy S. Zimmerman, Atty. Gen., Allen C. Warshaw, Sr. Deputy Atty. Gen., Chief, Litigation Section, Harrisburg, Pa., Sheila M. Ford (argued), Deputy Atty. Gen., Pittsburgh Before ALDISERT, Chief Judge, WEIS, Circuit Judge, and RE, Chief Judge. ^*

Pa., for appellees/cross-appellants Ricardo Coles, et al.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this Title VII case, the defendants' burden of producing evidence to show that plaintiff would not have been hired even absent discrimination was an integral part of the liability phase of the case. The district court, viewing the issue as a relief inquiry, incorrectly placed a burden of persuasion on defendants, but in the circumstances here, the ruling is not reversible. In addition, we agree with the district court that a backpay award against the state may be reduced by the amount of unemployment benefits and public assistance payments received by plaintiff. Accordingly, we will affirm.

After a bench trial, the district court found that defendants had discriminated against plaintiff in refusing to employ her because she was a woman. She was awarded back pay, and defendants were directed to hire her for the first available vacancy. Both parties appeal.

Plaintiff applied for permanent employment as a Houseparent at Youth Forestry Camp No. 1, a juvenile detention facility, operated by the Commonwealth of Pennsylvania through its Department of Public Welfare. The camp houses male teenage delinquents in two dormitory-style barracks. Houseparents, who work weekly rotating shifts, are responsible for twenty-four hour supervision of the detainees.

Houseparent positions are filled through the state's civil service hiring process. 71 PA.CONS.STAT.ANN. Secs. 741.501-741.603, (Purdon Supp.1983). To be considered for this employment, an applicant must first pass an examination. Next, the names of successful examinees are placed on a hiring list in test score order.

When a position becomes open at the camp, the director or one of his subordinates submits a request to the Civil Service Commission which in turn provides a "certification of eligibles." The certification identifies persons who have passed the test and indicated a willingness to work at the camp. A camp official then invites the top-ranking applicants for an interview. The position is offered to one of those who has the three highest scores among those candidates who appear.

The civil service regulations permit the use of eligibility lists limited to individuals who meet special qualifications. See 4 Pa.Code Sec. 95.4 (1984). In 1977, the camp director, defendant Ricardo Coles, submitted a written request to use an all-male list when filling Houseparent positions. He received approval from the Civil Service Commission. A selective certification of eligibles remained in use until December 1980, when the Commission directed the camp to stop the practice. From December 1979 until December 1980, seven Houseparent positions were filled by men.

Plaintiff contended that she should have been hired after passing the test. She protested the failure to consider her application. After receiving a right to sue letter from the EEOC, she filed a complaint in the district court alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000(e), et seq., the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, and the Equal Rights Amendment, Art. I, Sec. 28 of the Pennsylvania Constitution.

Concluding that plaintiff had established a prima facie case of disparate treatment at trial, the district court reviewed the defendants' evidence of nondiscriminatory reasons for not hiring plaintiff. The defendants contended that even though the all-male list was used, plaintiff was denied employment because of her misconduct during a CETA training period as a Houseparent trainee. ¹

The rebuttal evidence consisted of testimony that plaintiff had failed to report two instances of inmate misconduct, had improperly disclosed confidential information about one of the youths, had made malicious remarks about other employees, and that staff members did not wish her to be hired. Although not questioning the truth of the reports, the court concluded that these grounds were pretextual. Therefore, in the court's view, plaintiff had proved intentional discrimination by showing that gender was a determinative factor in the state's failure to hire her.

The court rejected the defendants' contention that three males who had lower scores than plaintiff would have been hired in any event because they had other qualifications superior to hers. The court observed that defendants had failed to show the three males would have been among the top three applicants if a nondiscriminatory list had been used.

The court awarded back pay as of March 1980, the date of the first vacancy after plaintiff had passed the examination. This amount was reduced by earnings from other employment, unemployment compensation, and public assistance benefits. ² No front pay was awarded. The court also directed the state to hire plaintiff to fill the first available vacancy with retroactive seniority, provided she regained her status as an eligible on the civil service list and three women who had been on that list since December 1979 did not outrank her. Because defendants had stipulated that women were capable of performing Houseparent duties, the court enjoined the use of a selective list limited to males. ³

On appeal, plaintiff contends that the deductions from her back pay were improper and challenges the court's failure to award "front pay" as well as the adequacy of the hiring order. Plaintiff also insists that punitive damages against defendant Coles should have been awarded. ⁴ Defendants contend that the district court erred in finding liability and in shifting the burden of persuasion to them in the "relief" phase of the case.

I

The challenges to the court's remedy and its finding of liability in this disparate treatment case illustrate that there is still uncertainty about the procedures in cases of this nature. We therefore believe it advisable to review once again the burdens of persuasion and production in Title VII cases. ⁵

As the Supreme Court observed in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), a Title VII suit is civil litigation to redress a statutory violation. As in other civil suits, it is possible to establish liability by direct evidence. If so, the proof problems are not different simply because the case arises under Title VII. Recognizing, however, that in most employment discrimination cases direct evidence of the employer's motivation is unavailable or difficult to acquire, the Court articulated a method of proof that relies on presumptions and shifting burdens of production.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), set out the now familiar pattern. The plaintiff must initially establish a prima facie case. The burden then shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the plaintiff's rejection." Finally, the plaintiff must be given an opportunity to show that the defendant's stated reasons were in fact only pretextual or incredible.

The McDonnell Douglas formula, though applied in several cases, e.g., Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), lacked precision until clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Burdine makes clear that the plaintiff has the burden of persuasion by a preponderance of the evidence to make out a prima facie case of discrimination. Id. at 253-54, 101 S.Ct. at 1093-94. To rebut, the defendant has the burden of going forward with evidence explaining its actions. Id. at 254-56, 101 S.Ct. at 1094-95. If the defendant fails to produce any evidence, the court must enter judgment for the plaintiff. Id. at 254, 101 S.Ct. at 1094.

If the defendant does go forward, its burden is not persuasion but only production. If the defendant's evidence raises a genuine issue of fact, id. at 254, 101 S.Ct. at 1094, the presumption created by the plaintiff's prima facie case drops from the case, id. at 255 n. 10, 101 S.Ct. at 1095 n. 10. The plaintiff then may show that the defendant's reasons are either pretextual or unbelievable. Id. at 256, 101 S.Ct. at 1095. Even though the parties each bear particular evidentiary responsibilities, the burden of persuasion throughout the case remains with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.

The McDonnell Douglas formula is a tool that enables the trial judge to sift through the evidence in an orderly fashion to determine the ultimate question in the case--did the defendant intentionally discriminate against the plaintiff. Aikens, 460 U.S. at 715-17, 103 S.Ct. at 1482-83. The presumptions and the shifting burdens are merely an aid in making that determination; they are not ends in themselves. Id.

The formula does not...