E.E.O.C. v. Alton Packaging Corp., 89-3484

• Citation: 901 F.2d 920
• Decision Date: 18 May 1990
• Docket Number: No. 89-3484,89-3484
• Parties: 52 Fair Empl.Prac.Cas. 1734, 53 Empl. Prac. Dec. P 39,932, 58 USLW 2747 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ALTON PACKAGING CORP., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 920

901 F.2d 920

52 Fair Empl.Prac.Cas. 1734,

53 Empl. Prac. Dec. P 39,932, 58 USLW 2747

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ALTON PACKAGING CORP., Defendant-Appellee.

No. 89-3484.

United States Court of Appeals, Eleventh Circuit.

May 18, 1990.

Angelo Filippi, Stanley Kiszkiel, Miami, Fla., Cynthia Misicka, E.E.O.C., Washington, D.C., for plaintiff-appellant.

Victor M. Halbach, Jr., Jeptha Barbour, Susan L. Smith, Jacksonville, Fla., for defendant-appellee.

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

Before TJOFLAT, Chief Judge, and JOHNSON and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant Equal Employment Opportunity Commission ("EEOC") challenges the district court's "dismissal" ¹ of its claims of unlawful employment practices brought under Sec. 703(a) and Sec. 709(c) of Title VII, 42 U.S.C.A. Secs. 2000e-2(a) and 2000e-8(c); 29 CFR Sec. 1602.14.

I. STATEMENT OF THE CASE

Appellee Alton Packaging Corp. ("Alton") manufactures paper cores and tubes for the paper mill industry in Jacksonville, Florida. Otis Felton, a 42-year-old high school graduate, began working for Alton in 1974, after holding positions elsewhere in the paper industry. While at Alton, Felton advanced through the ranks of seniority. He began as a general laborer, moving on to sawman trainee, number 2 roll hanger, number 1 roll hanger, tow motor operator, slitter winder helper, and spiral/tube winder operator. Alton awarded Felton a "red circle" pay increase for good work, and a supervisor once took him out to dinner for a job well done. On the other hand, his employment file as of fall 1983 contained reprimands for improper work habits, tardiness, unexcused absences, insubordination, and falsifying documents.

In late 1983, Alton acquired a new slitter/rewinder machine. Alton determined that the new machine would occasion greater productivity and thus decided to create a new production shift. Alton needed a production supervisor to head up the new shift. ² The production supervisor would supervise the operation of the new machine, operate the machine, order supplies, train employees, complete production records, and so forth. There was no written description of duties or qualifications needed for the new supervisor, and Alton posted no notice of the promotion opportunity at the plant.

Robert Raymond, the general manager of the plant, and Robert Diesen, the production manager, reviewed the files of the existing Alton personnel. They determined that none of the employees, including Felton, were qualified for the new supervisor's position. They then placed an ad in the local newspaper, seeking a "high school graduate, some college preferred" who was "mechanically inclined and good with figures." Alton received several applications as a result of this ad, and in January 1984 hired Kevin Blake, a white male. Blake had a college degree in industrial technology and had had previous employment as an electrician. Thirty days after Alton hired Blake, but before Felton filed with the EEOC, Alton destroyed all of the applications for the supervisor's position.

Felton discovered that a position had been available when he was introduced to the new production supervisor, Kevin Blake. Feeling that Alton had passed over him for the position because he was black, Felton filed a discrimination charge with the EEOC. On September 29, 1987 the EEOC filed suit in federal court alleging that Alton had refused to promote Felton in violation of Sec. 703(a) of Title VII. On August 22, 1988, the EEOC amended the complaint, alleging that Alton had also failed to preserve the applications for the position in violation of Sec. 709(c) of Title VII. The non-jury trial took place on March 9, 1989. At trial, one witness testified that Robert Raymond had stated that "if it was his company, he wouldn't hire any black people." Another witness, a black former Alton employee, testified that Robert Diesen had yelled at him, "--- ---- it, you people can't do a ------- thing right." Felton testified that he did not agree with all of the reprimands in his file. The EEOC objected to several handwritten reprimands on hearsay grounds.

On April 17, 1989, the district court denied the EEOC's claim. The court found that Felton was not qualified for the job in question, while Blake was. Further, the court found no evidence that Alton willfully violated Title VII's record-keeping provision. The EEOC filed Notice of Appeal with this Court on June 12, 1989. On appeal, we consider whether the district court erred in its analysis of the discrimination claim, whether the district court erred in admitting the written reprimands contained in Felton's personnel files, and whether the district court erred in refusing to issue an injunction against Alton for its violation of Title VII's record-keeping provisions.

II. ANALYSIS

A. The Discrimination Claim

The district court concluded that:

(1) Felton was not qualified for the job in question

....

(2) Felton's work history and performance were enough to disqualify him.

(3) Felton's qualifications did not approach those of Blake.

(4) Blake was well qualified for the job. In fact, his qualifications and history on the job were superior.

(5) Plaintiff did not show the business reasons advanced by defendant were pretextual.

This Court reviews the district court's findings of fact under the clearly erroneous standard, Fed.R.Civ.P. 52(a), unless the district court made those findings pursuant to an erroneous view of controlling legal principles. Harris v. Birmingham Bd. of Educ., 712 F.2d 1377, 1381 (11th Cir.1983).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court designed a test for determining whether a plaintiff has proven a prima facie case of discriminatory treatment. ³ See also Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1143 (11th Cir.1983) (in discriminatory promotion cases, plaintiff must prove that the denial of the promotion was motivated by discriminatory intent). This test, however, is to be applied in cases where circumstantial evidence is the only proof of discrimination. When a plaintiff proves a case of discrimination by direct evidence, application of McDonnell Douglas is inappropriate. Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir.1982). In a direct evidence case, the plaintiff must produce direct testimony that the employer acted with discriminatory motive, and must convince the trier of fact to accept the testimony. Id. If the plaintiff produces such evidence and the trier of fact believes it, the defendant must prove by a preponderance of the evidence that the defendant would have reached the same decision without the factor proved. Id.; Price Waterhouse v. Hopkins, --- U.S. ----, 109 S.Ct. 1775, 1787, 104 L.Ed.2d 268 (1989). In other words, the employer must prove that even if it had not taken race into account, it would have come to the same decision. See Price Waterhouse, 109 S.Ct. at 1786.

The EEOC argues that the statement by Raymond that if it was his company he wouldn't hire any black people and the statement by Diesen to a black employee that "you people can't do a ------- thing right" constitute direct evidence of discrimination. ⁴ Thus, the EEOC argues that the district court erred in applying the McDonnell Douglas circumstantial evidence test. ⁵ We agree.

The facts in this case are very similar to those in Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.1985). In Miles, this Court found that a racial slur uttered by the person in charge of making employee evaluations and rehiring suggestions constituted direct evidence of discrimination. Id. at 876. Similarly, the EEOC alleges in this case that the two men responsible for promotion decisions at Alton made racial slurs. Under Miles, such slurs constitute evidence of a discriminatory motive requiring the burden to shift to the defendant to prove by a preponderance of the evidence that the defendant would not have promoted Felton absent the discriminatory motive. Id. See also Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1530 (11th Cir.1985) (hospital administrator's statement that the hospital needed "new blood" and that the plaintiff's advancing age impeded her constituted direct evidence in ADEA case); Lindsey v. American Cast Iron Pipe Co., 772 F.2d 799, 802 (11th Cir.1985) (director's statement that he wanted a younger person to fill the position constituted direct evidence in ADEA case).

Alton argues that Miles does not apply because the speaker did not rebut the racial slur, while the speakers in this case denied making the racially derogatory statements. The lower court in this case may well have disbelieved the testimony regarding the racial slurs. If so, however, the court should have stated its disbelief explicitly. "When direct evidence of discrimination has been introduced, the lower court must, as an initial matter, specifically state whether or not it believes plaintiff's proffered direct evidence of discrimination. Absent any reference to the direct evidence, it is unclear how the court below found." Thompkins v. Morris Brown College, 752 F.2d 558, 564 (11th Cir.1985) (citation omitted). In the present case, the district court made absolutely no reference to the racial slurs, leaving this Court no means of determining whether the court disbelieved the plaintiff's testimony. ⁶

Price Waterhouse does not define direct evidence. In her concurrence, however, Justice O'Connor stated that "stray remarks in the workplace," "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself" do not "justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria." Price Waterhouse, 109 S.Ct. at 1804. Raymond's statement that if it were his company he would not hire blacks...