Conner v. Fort Gordon Bus Co.

• Decision Date: 30 May 1985
• Docket Number: No. 84-8203,84-8203
• Citation: 761 F.2d 1495
• Parties: 37 Fair Empl.Prac.Cas. 1574, 37 Empl. Prac. Dec. P 35,272 Marietta Lee CONNER, Plaintiff-Appellant, v. FORT GORDON BUS COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1495

761 F.2d 1495

37 Fair Empl.Prac.Cas. 1574,

37 Empl. Prac. Dec. P 35,272

Marietta Lee CONNER, Plaintiff-Appellant, v. FORT GORDON BUS COMPANY, Defendant-Appellee.

No. 84-8203.

United States Court of Appeals, Eleventh Circuit.

May 30, 1985.

Leon Larke, Augusta, Ga., for plaintiff-appellant.

Roy V. Harris, Robert W. Hunter, Augusta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before JOHNSON and HATCHETT, Circuit Judges, and LYNNE ^*, District Judge.

JOHNSON, Circuit Judge:

Marietta Lee Conner filed this employment discrimination suit against the Fort Gordon Bus Company under 42 U.S.C.A. Sec. 1981 (West 1981) and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Secs. 2000e-2 to -17 (West 1981). The district court ruled in favor of the employer, finding that it had articulated a legitimate non-discriminatory reason for terminating Conner and that Conner had failed to prove that the reason was a pretext for sex discrimination. We affirm the judgment of the district court.

On February 6, 1981, the Fort Gordon Bus Company hired Marietta Lee Conner as a bus driver. At that time two of the seventeen other bus drivers working for the company were women. On May 4, 1981, the president of the company, E.C. Walton, was driving in his car when he observed a company bus make a dangerous and illegal left turn. The incident angered him because a bus driver making a similar illegal turn had recently caused an accident which had resulted in a $35,000 liability for the company. ¹ The next morning he determined that Conner had been driving the bus and he gave instructions to terminate her. Walton also fired a male bus driver, Sexton, that same day for reckless driving that endangered the safety of passengers. ²

The company had no formal or written guidelines covering the termination of bus drivers for unsafe driving. Many of the male drivers had received traffic citations and were reprimanded rather than terminated. Walton testified that he terminated drivers whose performance, in his judgment, seriously endangered the safety of the passengers or buses. That policy was strictly enforced after the $35,000 accident but Sexton, Conner, and the driver who had caused the previous accident were the only drivers terminated for reckless driving. Approximately four other drivers had been involved in accidents but none of them had been at fault.

In order to prove discriminatory treatment in violation of Title VII or Section 1981, a plaintiff-employee must establish a prima facie case of discrimination. ³ Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A prima facie case of discrimination raises the inference that discriminatory intent motivated the discharge of the employee. So long as the prima facie case of discrimination does not include direct evidence of discrimination, ⁴ the

                employer may rebut the presumption by clearly articulating in a reasonably specific manner a legitimate non-discriminatory reason for the discharge.  The plaintiff then must show that the proffered reason was a pretext for the true discriminatory reason.    See generally Burdine, supra;  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);  Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.1985).  On this appeal, Conner challenges the district court's findings that the Company articulated legitimate reasons for the discharge and that she failed to prove the pretextual nature of those reasons
                

ARTICULATION OF NON-DISCRIMINATORY REASON FOR DISCHARGE

According to the Supreme Court's opinion in Burdine, supra, a prima facie case of discrimination does not place the burden of persuasion on the employer. The defendant rebuts the presumption of discrimination if it produces evidence that raises a genuine issue of fact as to whether it discriminated against the plaintiff; it must accomplish this by clearly setting forth, through the introduction of competent evidence, the reasons for the plaintiff's discharge. This Court has characterized this "exceedingly light" burden as being merely a burden of production and not a burden of proof. Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir.1983). Nevertheless, since the defendant's explanation must be clear and reasonably specific, Burdine, supra, 450 U.S. at 258, 101 S.Ct. at 1096, some proffered reasons will be legally insufficient to rebut a prima facie case. For instance, a defendant relying on a purely subjective reason for discharge will face a heavier burden of production than it otherwise would. Robbins v. White-Wilson Medical Clinic, Inc., 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). The plaintiff here contends that the company failed to articulate a clear and reasonably specific non-discriminatory ground for discharging her because the explanation offered by Walton was subjective.

Walton explained that Conner's discharge was based on his observation of an illegal left turn and his conclusion that the bus driver had endangered the safety of the passengers and the bus. This safety standard was interpreted by Walton alone; indeed, Walton never informed the drivers of the criterion he used for deciding when to terminate a driver. Yet neither of these circumstances renders this standard purely subjective. A standard known only to the employer and interpreted only by the employer could nevertheless be clear, specific and capable of objective evaluation, so long as the standard could be applied by a factfinder after the discharge has taken place and the standard has been revealed.

The unpublicized nature of a decisionmaking standard does not affect its clarity or specificity at trial. If an employer articulates at trial a clear and specific reason for discharging an employee, the purposes of the employer's burden of production have been met. The employee is given a reasonable opportunity for rebuttal, for she is accorded the opportunity to show her competence according to the stated objective criteria. See Miles, supra, at 871. Title VII does not require employers to inform employees of the reasons behind their evaluations. Failure to explain decisions to employees may prove bad management but it does not necessarily prove discrimination. See Pace v. Southern Railway System, 701 F.2d 1383, 1392 n. 8 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983).

Neither is a proffered explanation insufficiently clear or specific simply because an employer has interpreted the standard without recourse to written guidelines. Previous decisions of this Court suggest that an employer's proffered reasons The standard used by the defendant in this case, unreasonable endangerment of passengers and property, is capable of objective evaluation. It resembles the objective duty of reasonable care employed by a court adjudicating tort claims. The plaintiff has not shown that Walton interpreted the standard in such an unusual manner, contrary to the normal meaning of the words, that a factfinder could not reasonably determine whether that standard was relied upon in any given case. The standard had a meaning accessible to Conner; she was able to question whether on a rational and objective basis her case fell within the described category. While it remains true that this Court disfavors subjective methods of evaluation because they provide a ready mechanism for racial discrimination, Miles, supra, at 871; Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1385 (5th Cir.1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979), a legitimate ground for decision articulated by an employer, even a ground that requires interpretation on the part of the employer, is legally sufficient to satisfy the employer's burden of production so long as it is capable of objective evaluation.

                are too subjective to qualify as clear and specific reasons only where a factfinder cannot reasonably determine whether or not they apply to the plaintiff.  For instance, the employer in Robbins, supra, cited the plaintiff's unpleasant personality as the reason she was not hired.  While the court noted that such a reason would not be legally insufficient in every case, it held that the peculiar definition of "pleasant personality" used by the employer, equating pleasant personalities with "white" personalities, was legally insufficient to rebut a prima facie case.  In Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1010-11 (11th Cir.1984), the employer refused to hire the plaintiff because of his prediction, based on the applicant's record, that he would not last long at the company.  The Court found this reason sufficient to rebut the prima facie case and distinguished Robbins, stating that the proffered reason was "somewhat subjective, [but] not so incapable of objective evaluation as to render it inadequate to meet the defendant's burden of rebuttal."    The employer's conclusion was based on a review of a written application, but he evaluated that material according to personal standards
                

Of course, the fact that an employer never formally announces a decisionmaking criterion and interprets it according to its own lights is relevant to a plaintiff's claim of discrimination. The use of unannounced policies, interpreted according to subjective criteria, will tend to support a plaintiff's claim of pretext. The articulated explanation in this case, however, was sufficiently clear and specific to force the plaintiff to prove, if she could, that it was a pretext.

PROOF OF PRETEXT

After the defendant articulates legitimate non-discriminatory reasons for a discharge, the plaintiff must prove by a preponderance of the evidence that the articulated reasons were not the sole causes of the discharge but rather that discrimination made a difference in the...