DeLesstine v. Fort Wayne State Hosp. and Training Center

• Decision Date: 26 April 1982
• Docket Number: No. 80-2102,80-2102
• Citation: 682 F.2d 130
• Parties: 29 Fair Empl.Prac.Cas. 193, 29 Empl. Prac. Dec. P 32,856 Harold DeLESSTINE, Plaintiff-Appellee, v. FORT WAYNE STATE HOSPITAL AND TRAINING CENTER, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 130

682 F.2d 130

29 Fair Empl.Prac.Cas. 193,

29 Empl. Prac. Dec. P 32,856

Harold DeLESSTINE, Plaintiff-Appellee, v. FORT WAYNE STATE HOSPITAL AND TRAINING CENTER, et al.,

Defendants-Appellants.

No. 80-2102.

United States Court of Appeals, Seventh Circuit.

Submitted April 26, 1982. ^*

Decided June 24, 1982.

Theodore L. Sendak, Atty. Gen. of Indiana, Indianapolis, Ind., for defendants-appellants.

Kirby G. Moss, Fort Wayne, Ind., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and PELL and CUDAHY, Circuit Judges.

CUMMINGS, Chief Judge.

This is a review of the district court's finding that defendants-appellants have unlawfully terminated plaintiff's employment as a Dietician III at the Fort Wayne State Hospital and Training Center (State Hospital), because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

I

We proceed by addressing appellants' argument which is tantamount to an assertion of an affirmative defense, namely that in order to establish an element of a prima facie case of employment discrimination, the plaintiff is required to prove that his position was not filled by "a member of the protected minority."

In McDonnell Douglas Corp. v. Green, the Supreme Court held that a plaintiff could make a prima facie claim of employment discrimination by showing:

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted). Appellants argue that appellee has not and cannot establish a prima facie case of discriminatory discharge from employment because "element (iv) (of the McDonnell model for proving a prima facie case) necessitates a showing that a plaintiff's position was filled by a person not a member of the protected minority.... (And since) the evidence established that (appellee, a black man) was permanently replaced by a member of a protected class (a female), the burden of going forward did not pass to Appellants." ¹ (Appellants' Brief at 6-7). The dissenting opinion, in support of appellants' argument, also sees the fact that appellants sought minority applicants as foreclosing the finding that appellants have engaged in discriminatory conduct towards this appellee. ²

That reasoning would foreclose a plaintiff from proving a prima facie case unless an employer discriminated not only against plaintiff but also against every so-called protected minority by hiring a so-called "non-protected" person to fill the position. ³ Appellants' argument defies the logic, purpose and language of Title VII.

The reference to an employer seeking applicants from persons of "complainant's qualifications" in the (iv) element of the McDonnell model for establishment of a prima facie case, does not refer to the complainant's racial, ethnic, gender, religious, or national origin background. Title VII does not establish a class of protected minorities and non-protected others. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 259, 101 S.Ct. at 1097. "It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the work force." Furnco Const. Corp. v. Waters, 438 U.S. at 579, 98 S.Ct. at 2951. We hold that the reference to "complainant's qualifications" in the McDonnell model refers to a complainant's pertinent skills, talents, learning, training, and experience. The central focus of the inquiry in a Title VII case such as this is whether the employer is treating a plaintiff less favorably than others because of his race, color, religion, sex or national origin. Id. at 577, 98 S.Ct. at 2949. "(T)he Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.... Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.... Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origin. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant." Griggs v. Duke Power Co., 401 U.S. 424, 430, 431, 432, 436, 91 S.Ct. 849, 853, 854, 856, 28 L.Ed.2d 158 (1971).

The fact that appellants have hired a female to replace appellee does not therefore preclude appellee from proving a prima facie case of discriminatory discharge from employment. "A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination.... 'The company's later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it.' " Furnco Const. Corp. v. Waters, 438 U.S. at 579, 98 S.Ct. at 2950-51, citing, Teamsters v. United States, 431 U.S. 324, 341-342, 97 S.Ct. 1843, 1857-58, 52 L.Ed.2d 396 (1977). ⁴

II

We will now apply the clearly erroneous standard to the review of the district court's findings of subsidiary facts encompassing the parties' conduct. Fed.R.Civ.P. 52(a). However, the ultimate fact of discrimination, namely whether defendants' conduct constitutes a violation of Title VII, involves both a finding of fact and a conclusion of law. Consequently, we may make an independent examination of the ultimate fact of discrimination, though we are still bound by findings of subsidiary facts which are not clearly erroneous. Stewart v. General Motors Corp., 542 F.2d 445, 449 (7th Cir. 1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977).

Plaintiff-appellee established a prima facie case of employment discrimination by proving that: he is a black man who was qualified for his position as chief dietician at the State Hospital having been trained in dietetics, receiving a bachelor of science degree from New York University and a master of science degree from Columbia University; ⁵ despite his satisfactory work performance he was discharged from his position; ⁶ and the position was filled temporarily by an individual who appellants admit was not qualified for the job, and later the position was filled by an individual of complainant's qualifications. See Davis v. Weidner, 596 F.2d at 730.

Defendants-appellants then met their burden of rebutting appellee's prima facie case, ⁷ by articulating a legitimate, nondiscriminatory reason for appellee's discharge. ⁸ Appellants' only articulated reason was that appellee was discharged for "Conduct Unbecoming a State Employee, in that while (he was) claiming to be ill after surgery and unable to perform (his ) duties as a Dietician III for the State of Indiana and this Training Center, (he) worked as a consulting dietician for the Glen Oaks Nursing Home in Auburn, Indiana on the following dates (five specified dates)." (Plaintiff's Exhibit 1-State Hospital's official notice of suspension pending dismissal) (emphasis added). The record is devoid of any facts in support of the dissent's view that appellants' articulated reason was based on a claim of a state policy forbidding an employee from engaging in any other kind of employment while on sick leave. The dissent ignores that appellants' articulated reason merely sought to utilize appellee's performance of consulting work as proof of the lack of truth and veracity in appellee's claim to be ill and unable to perform his duties at the State Hospital. (Transcript at 119-20, 131).

Direct showing of the discriminatory reasons that more likely motivated an employer in the decision to discharge an employee is not the only method of proving intentional discrimination. Intentional discrimination may also be proven "indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; McDonnell Douglas v. Green, 411 U.S. at 806-807, 93 S.Ct. at 1826-27. We hold that the evidence establishes that the appellee proved that appellants' proffered reason was not the true reason for his discharge and that he was the victim of intentional discrimination. The primary facts proved at the trial were that while plaintiff was working at the State Hospital, before he went on sick leave, he was informed by a State Hospital social worker that there was a need at the Glen Oaks Nursing Home for a consulting dietician in order for the nursing home to meet medical standards. Because the State Hospital housed some forty patients at the nursing home, there was some concern that the home might be forced to close if medicare standards were not met and that the State Hospital would then be required to find alternative housing for the patients. Following the lead provided by the social worker at the State Hospital and pursuing the need recognized by the social worker, plaintiff agreed, prior to going on sick leave, to serve as a consultant to the nursing home. This was not shown to be contrary to law or State Hospital policy. On April 16, 1974, plaintiff began an extended period of sick leave. Dr. Reed...