Barnes v. Yellow Freight Systems, Inc.

• Decision Date: 19 December 1985
• Docket Number: No. 84-1793,84-1793
• Citation: 778 F.2d 1096
• Parties: 39 Fair Empl.Prac.Cas. 1050, 39 Empl. Prac. Dec. P 35,894 Charles E. BARNES, Plaintiff-Appellant, v. YELLOW FREIGHT SYSTEMS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1096

778 F.2d 1096

39 Fair Empl.Prac.Cas. 1050,

39 Empl. Prac. Dec. P 35,894

Charles E. BARNES, Plaintiff-Appellant, v. YELLOW FREIGHT SYSTEMS, INC., Defendant-Appellee.

No. 84-1793.

United States Court of Appeals Fifth Circuit.

Dec. 19, 1985.

Mullinax, Wells, Baab & Cloutman, P.C., Edward B. Cloutman, III, Dallas, Tex., for plaintiff-appellant.

Haynes & Boone, Charles C. Frederiksen, Kenneth E. Broughton, Jr., Dallas, Tex., for defendant-appellee.

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

Before REAVLEY and E. GRADY JOLLY, Circuit Judges, and MAHON, ^* District Judge.

E. GRADY JOLLY, Circuit Judge.

Yellow Freight terminated Charles Barnes, a black shift operations manager with nearly seven years service, claiming that he was not performing his job properly. At the same time, Yellow Freight only demoted a white shift operations manager who had an unsatisfactory rating similar to Barnes' and only three years seniority with the company. Barnes claims that the disparate treatment that he received violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. and 42 U.S.C. Sec. 1981. After trial, the district court entered judgment for Yellow Freight and Barnes timely appealed. We vacate and remand the case to the district court for reconsideration.

I.

Barnes was hired by Yellow Freight in 1973. In 1974, he was promoted to dock foreman. In 1978, Barnes received a written performance evaluation of "good" on a scale of poor, fair, satisfactory, good, excellent and outstanding. Barnes was again promoted in February 1979, this time to shift operations manager at Yellow Freight's Dallas, Texas, facility. His performance ratings in March and August 1979 were "good plus" and "excellent," respectively, on the same scale described above. At all relevant times, Barnes was one of at most three black people in supervisory positions at the Dallas facility out of a total of thirty-two Dallas supervisors, and he was the only black shift operations manager.

In April 1980 Ed Eldridge became the new area manager for Yellow Freight's Dallas plant. A new evaluation scale which rated employees A, B, C, D or F was put into effect almost immediately. ¹ Under this new system, Barnes, along with virtually all other supervisors, received a much more critical evaluation than he had in the past. Barnes was rated C-. Twenty-two of the approximately twenty-nine white supervisors were rated either C- or lower.

After April, Barnes and several other supervisors received counselling from their immediate supervisor, Ed Badgett, on difficulties that they were having with the job. The specific complaints about Barnes were that (1) his crews were breaking out freight incorrectly and leaving the dock area cluttered, (2) he failed to make sure that all shipments during his shift had the proper freight bills attached, (3) he had sent some shipments to the wrong destinations, (4) one shipment during his shift had been improperly loaded and the freight damaged, (5) his crews failed to break out the oldest loads first, and finally, (6) he was having difficulty commanding the respect of his crew. Other supervisors, including a white dock foreman named Maury Nixon, had similar problems and received counselling similar to Barnes' in the same few months after April 1980. Nixon, however, had been promoted to shift operations manager in May by Eldridge despite the fact that in April Nixon had received a D rating under Eldridge's new system.

On September 12, 1980, Eldridge, without issuing another formal evaluation or rating and without warning him that his job was in jeopardy, offered Barnes the option of either resigning or being immediately terminated. Eldridge testified at trial that he made the decision to let Barnes go after Barnes' immediate supervisor, Badgett, recommended that Barnes be removed from his position as shift operations manager, and after he had reviewed Barnes' performance since the April 1980 rating. Faced with the decision, Barnes chose to resign. ² Four days later, Maury Nixon, with a work record similar to Barnes' and with the lower rating, was not discharged but rather demoted back to dock foreman after Eldridge determined that Nixon was not capable of doing the shift operations manager's job.

The district court held that this is a disparate treatment Title VII case that should be analyzed under the guidelines established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The court concluded as a matter of law that Barnes had failed to make out a prima facie Title VII case because he had not proved that he was qualified for the job from which he was discharged. The court concluded in the alternative that even if Barnes had made out a prima facie case of qualification, Yellow Freight had articulated a legitimate, nondiscriminatory reason for discharging Barnes while only demoting the similarly situated white, Nixon i.e., that Nixon had taken the shift operations manager job, for which he proved to be unqualified, at Eldridge's insistence. It then found that Barnes had not discharged his burden of persuasion that Yellow Freight had intentionally discriminated against Barnes because he is black. In the course of reaching its decision, the district court found as a matter of fact that no white supervisor was terminated during the year April 1980 to April 1981, and that Nixon was no better qualified as a dock foreman, the position to which he was demoted, than was Barnes in September 1980.

II.

The parties agreed with the district court that this is a disparate treatment Title VII case that should be analyzed under the guidelines established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). On appeal, Barnes contends that the district court erred as a matter of law in finding that he did not make out a prima facie case, and that the district court was clearly erroneous in its alternative finding that Yellow Freight had articulated legitimate, nondiscriminatory reasons in response to Barnes' prima facie case. Barnes also alleges that his selection for discharge, rather than transfer or demotion, was racially motivated, and that Yellow Freight has not articulated any reasonable nondiscriminatory reason for discharging Barnes while retaining white supervisors who had work records similar to or worse than Barnes'.

Yellow Freight, on the other hand, submits that the district court's finding that Barnes failed to make out a prima facie case is supported by substantial evidence and should not be overturned on appeal. According to Yellow Freight, there is no evidence that Barnes was qualified for the position of shift operations manager and no evidence that anyone replaced him in that position after he left Yellow Freight; therefore, Barnes did not make out his prima facie case and judgment was properly entered against him. Yellow Freight maintains that since Barnes was no longer qualified to hold the job of shift operations manager, it was justified in terminating him.

Notwithstanding the contentions of the parties, the issue in this case is not whether there were grounds for Barnes' discharge. The district court found, and we agree, that Barnes did not carry his burden of proving that he was qualified for the job from which he was discharged. We presume as well that Nixon was not qualified for the same job since his performance record there was similar to Barnes' and since he was removed for cause by his supervisors at Yellow Freight. The proper analysis of this case does not require asking whether Yellow Freight discriminated against Barnes by deciding that he was unqualified for the job of shift operations manager. The question facing us instead is whether the discipline administered to Barnes, admittedly harsher than that administered to Nixon and other white supervisory personnel, was discriminatory and a violation of Title VII. Yellow Freight admits that the treatment was disparate. It remains for us to determine whether the distinction was racially discriminatory in violation of Title VII.

III.

In McDonnell Douglas the Supreme Court held that a plaintiff may make out a prima facie case of discrimination under Title VII by showing (i) that he belongs to a racial minority, (ii) that he was qualified for the job from which he was discharged or for which he was not hired, (iii) that he was discharged or not hired, and (iv) that the employer filled the position in question with a nonminority person. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1094 n. 6. After the plaintiff makes out the prima facie case, the burden shifts to the defendant employer to articulate some legitimate, nondiscriminatory reason for rejecting the employee. If the employer meets this test, then the burden returns to the plaintiff to prove that the articulated reason is pretextual.

The McDonnell Douglas rule was intended to be a flexible one. The Supreme Court has recognized that the facts of Title VII cases necessarily vary, so the specific prima facie proof that was demanded of the McDonnell Douglas plaintiff "is not necessarily applicable in every respect to differing factual situations." McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-58, 98 S.Ct. 2943, 2949, 5 L.Ed.2d 957 (1978).

We agree with the district court that this case should be analyzed under the disparate treatment theory. This is simply not a disparate impact case, where "practices, procedures, or tests neutral on their face, and even neutral in terms of intent" are operating to...