Miles v. M.N.C. Corp.

• Decision Date: 15 January 1985
• Docket Number: No. 83-7309,83-7309
• Citation: 750 F.2d 867
• Parties: 36 Fair Empl.Prac.Cas. 1289, 36 Empl. Prac. Dec. P 34,953, 17 Fed. R. Evid. Serv. 393 Mary J. MILES, Plaintiff-Appellant, v. M.N.C. CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 867

750 F.2d 867

36 Fair Empl.Prac.Cas. 1289,

36 Empl. Prac. Dec. P 34,953,

17 Fed. R. Evid. Serv. 393

Mary J. MILES, Plaintiff-Appellant, v. M.N.C. CORPORATION, Defendant-Appellee.

No. 83-7309.

United States Court of Appeals, Eleventh Circuit.

Jan. 15, 1985.

Peter H. Martin, Legal Services Corp. of Alabama, Opelika, Ala., for plaintiff-appellant.

Larry E. Forrester, Julie H. Jackson, Daniel S. Bowling, III, Atlanta, Ga., for defendant-appellee.

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

Before GODBOLD, Chief Judge, JOHNSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Mary Miles appeals from an adjudication that defendant-appellee M.N.C. Corporation (M.N.C.) did not discriminate against her on the basis of race in violation of Title VII of the Civil Rights Act. M.N.C. is a company engaged in the manufacture of cardboard boxes in Opelika, Alabama. Mary Miles claims that she was the victim of racial discrimination practiced by M.N.C. when the company did not rehire her after a temporary layoff. Miles started work for Rock-Tenn Company, M.N.C.'s predecessor in interest, on November 7, 1979 and was laid off on December 17, 1979. At the beginning of 1980, M.N.C. replaced Rock-Tenn as the owner of the business. Nick Constan, the major stockholder and president of M.N.C., served as plant manager for Rock-Tenn prior to M.N.C.'s purchase of the company. M.N.C. retained the same work force and managers and produced the same product under the same conditions as Rock-Tenn. ¹

At the time of Miles' layoff, two other full-time general production workers were also laid off. One of these workers, Lavelle Parmer, was white and the other worker, Sarah Wright, was black. Layoffs were according to seniority and these three women were the junior employees at the plant. Both Parmer and Wright had been employed a few days before Miles. One white male part-time worker, David Kinports, was also laid off. Miles claims that Dave Nichols, the plant supervisor, told her on two occasions that she would be recalled after the first of the year. Around January 23, 1980, Parmer, the white full-time worker, was reemployed and two white male part-time workers were employed. Part-time workers had the same duties as full-time general production workers. In June 1980, Parmer quit her job and was replaced by Karen Wilson, a white worker who had been employed by Rock-Tenn over two years, moved away and then returned to the Opelika area.

After Parmer told Miles about her reemployment, Miles met with Nick Constan in January 1980. According to Miles, Constan told her at that time she would be recalled when work picked up before new employees were hired. Upon hearing about the employment of Wilson in June, Mary Miles spoke with Olin Henderson, plant manager, who told her she would be recalled when business picked up. Miles filed a charge of racial discrimination with the E.E.O.C. on November 1, 1980, received her right-to-sue letter in October 1981 and filed suit in federal court in December 1981.

After hearing testimony and receiving briefs, the district court found against Miles on her claim of racial discrimination. The district court applied a disparate treatment analysis to the facts and found that Miles had made out a prima facie case of discrimination. ² Once the prima facie case is proved, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its acts with regard to the plaintiff. The burden on the defendant is one of production rather than persuasion. ³ If the employer carries this burden of production, the presumption raised by the prima facie case is rebutted and the employee must persuade the court that the reasons for not hiring plaintiff offered by the employer were pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207, 217 (1981).

Miles contends that her direct evidence of discrimination, in the form of a racial slur made by Olin Henderson, changed the traditional burden of proof. Miles argues that a defendant cannot refute direct evidence of discrimination by mere articulation of other reasons for its actions. Instead, the defendant must rebut by proving by a preponderance of the evidence that it would have reached the same decision absent the presence of the illegal motive. The district court found that the racial slur evidence was struck from the record. The court held that both Parmer and Wilson were senior to the plaintiff, more experienced and more proficient. The court also noted that at the time the part-time employees were hired there was no need for full-time workers and that the plaintiff never applied for part-time work. The district court found that the statistical evidence lacked probity because it did not show the relative qualifications of black and white workers.

Mary Miles now appeals and claims that the district court made the following clearly erroneous findings of fact: 1) that seniority played a role in determining who was entitled to recall; 2) that Wilson's ability to operate a machine was the reason why she was hired; 3) that the plaintiff did not apply for part-time employment; 4) that the statistical evidence was related to racial composition of the area; 5) that Olin Henderson's racial slur had been stricken from the record; 6) that the plaintiff offered no testimony as to the quality of her work; 7) that Parmer was an excellent block setter. The district court made several clearly erroneous findings of fact and erred with respect to the racial slur. The court then wrongfully concluded that M.N.C. would have reached the same decision regarding Miles even absent the illegal motivation. We reverse.

A court of appeals may not set aside district court findings of fact unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). This standard imposes a heavy burden on the appellant in a case in which the evidence was largely testimonial and the district court had the advantage of observing the witnesses and making credibility determinations. Lincoln v. Board of Regents of Univ. System, 697 F.2d 928, 939 (11th Cir.1983). A finding of fact is reversible under Rule 52(a) only when, after reviewing the entire record, the appellate court is convinced that an error has been made. Wright v. Western Electric Co., 664 F.2d 959 (5th Cir.1981). The review this court conducts inquires into whether a finding has substantial evidence to support it. Lincoln, supra at 939.

Because of the employee's easy burden of establishing a prima facie case and the employer's normal ability to articulate some legitimate nondiscriminatory reasons for its actions, most disparate treatment cases turn on the plaintiff's ability to demonstrate that the nondiscriminatory reason offered by the employer was a pretext for discrimination. B. Schlei & P. Grossman, Employment Discrimination Law 1316-1317 (1983). The same is true of the present case. Three types of evidence can be used by a plaintiff to prove pretext: 1) comparative evidence; 2) statistical evidence; and 3) direct evidence of discrimination, in the form of discriminatory statements and admissions. B. Schlei & P. Grossman, supra at 1314. Miles proffered all three types of pretext evidence in this case. The district court made erroneous findings of fact with regard to each proffer: 1) in its determination that M.N.C. had legitimate reasons for hiring the two white workers in preference to Miles, 2) in its analysis of the statistical evidence offered at trial, and 3) in its decision as to the admissibility of the racial slur. The erroneous findings of fact in these three areas are crucial, and thereby affect the substantial rights of the plaintiff, because each determination made by the district court cut against the plaintiff's showing of pretext. ⁴

I. Comparative Evidence

Miles attempted to prove that white workers in a comparable employment position to her own were treated more favorably than she was. The district court found that M.N.C. proved by a preponderance of the evidence that the workers in question could not be compared to Mary Miles. Since the district court offered distinct reasons why Parmer, Wilson and the part-time workers could not be compared to Miles, each rationale should be considered separately.

The district court found that Parmer, the first rehired full-time worker, was senior to Miles and more experienced and proficient. The president of M.N.C. indicated that Mary Miles was not considered a call-back employee because she had not served the ninety-day probationary period. Since Parmer had worked only a few days longer than Miles, it is clear that she, too, lacked vested seniority rights. Therefore, seniority could not have acted as a legitimate reason for recalling Parmer but not Miles. The district court's finding that seniority provided a basis for distinguishing between the two women is important. The only other reason for so distinguishing them, the work performance of each, was based upon subjective evaluation.

This circuit has frequently noted the problems associated with this type of worker assessment and noted that subjective evaluations involving white supervisors provide a ready mechanism for racial discrimination. Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1385 (5th Cir.1978); Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir.1972); Robbins v. White-Wilson Medical Clinic, 660 F.2d 1064, 1067 (5th Cir. Unit B 1981), vacated on other grounds, 456 U.S. 969, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982); Harris v. Birmingham Bd. of Educ., 712 F.2d 1377 (11th Cir.1983). ⁵ This is because the supervisor is left free to indulge a preference, if he has one, for one race of workers over another. In addition, subjective and vague criteria may be insufficient reasons given by an employer for its failure to rehire...