E.E.O.C. v. Flasher Co., Inc.

• Decision Date: 29 December 1992
• Docket Number: No. 91-6279,91-6279
• Citation: 1992 WL 430602,986 F.2d 1312
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 814, 60 Empl. Prac. Dec. P 41,943 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. FLASHER COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1312

986 F.2d 1312

60 Fair Empl.Prac.Cas. (BNA) 814,

60 Empl. Prac. Dec. P 41,943

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. FLASHER COMPANY, INC., Defendant-Appellee.

No. 91-6279.

United States Court of Appeals Tenth Circuit.

Dec. 29, 1992.

John F. Suhre, of E.E.O.C., Washington, DC (Donald R. Livingston, General Counsel, Gwendolyn Young Reams, Associate General Counsel, and Carolyn L. Wheeler, Asst. General Counsel, on the brief), for plaintiff-appellant.

John B. Hayes of Looney, Nichols, Johnson & Hayes, Oklahoma City, OK, for defendant-appellee.

Before BALDOCK and EBEL, Circuit Judges, and LUNGSTRUM, District Judge. ^*

EBEL, Circuit Judge.

This Title VII case is before us on appeal from a district court judgment that the Appellant had failed to prove at trial that his employment termination resulted from disparate treatment based on national origin. The EEOC argues on appeal that it proved actionable discrimination when it established, and the district court found, that the defendant disciplined less severely several non-minority employees who had committed infractions that were of equal seriousness. However, the district court further held that the plaintiff had failed to prove that these differences in treatment were the result of intentional discrimination on the basis of a protected class. Contrary to the position urged upon us by the EEOC, we hold that a mere finding of disparate treatment, without a finding that the disparate treatment was the result of intentional discrimination based upon protected class characteristics, does not prove a claim under Title VII. Accordingly, we affirm.

I. Facts

Edward Perez and a coworker, Ronald Chambers, were involved in an altercation in December 1987 while travelling in a truck owned by their employer, the Flasher Company ("Company"). While en route to a job site, the two men began to quarrel and exchanged racial epithets. Perez struck Chambers, who was driving, and the car swerved to the side of the road. Chambers later drove to the next town and called his supervisor to report the incident. Perez refused to follow the supervisor's instructions to wait for someone to pick him up. He proceeded instead to the job site with Chambers. Perez was picked up at the job site by a supervisor and returned to the Company's office. Supervisor Hodges and Vice President Riebel later fired Perez.

The Equal Employment Opportunity Commission brought an employment discrimination action as a result of the firing. It alleged that the Company fired Perez because of his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). ¹ The EEOC compared the incident involving Perez, an Hispanic, with five other instances where the EEOC alleged that the Company handed out lesser punishment to non-minorities who had committed infractions of comparable or greater seriousness. ² The EEOC cited the following incidents for comparison:

1. Chambers accident: A verbal reprimand was given to two employees after they caused damage to a Company truck. The employees had been drinking beer and a non-employee passenger was in the truck in violation of Company rules.

2. Green/Langrehr altercation: An employee was suspended without pay for pushing a fellow employee in the course of horseplay. The push caused the latter employee to fall against a truck and separate his shoulder.

3. Lashley/motorist incident: An employee was terminated for his involvement in an altercation with a motorist while on duty. The termination was later revoked when the employee apologized to the motorist and paid his medical bills, and the motorist accepted partial blame for the incident.

4. Ray/Schlittenhardt altercation: A verbal reprimand and warning were given to two employees for fighting. The altercation took place off Company property and off Company time. The employees were warned that they would be terminated if they were caught fighting again.

5. Barton DUI incident: A reprimand and demotion was given to an employee who was charged with driving a Company truck during non-working hours while under the influence of alcohol.

The district court found that the infractions in incidents 1, 3, and 5 above were "at least as serious" as the incident involving Perez. Because the non-minority employees involved in those incidents were disciplined less seriously than Perez, the district court concluded that the EEOC made out a prima facie case of disparate treatment under the first prong of the test established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). ³

The district court next concluded that the Company had articulated a facially nondiscriminatory reason for its decision to terminate Perez. The reason given was that Perez had violated a company rule that an employee inflicting personal injury on another employee in the course of company business will be subject to immediate dismissal. The district court found that Perez's insubordination in refusing to stay put after the incident was reported was a secondary reason for his termination.

Finally, the district court concluded that the EEOC had failed to prove intentional discrimination against Perez because of his national origin, notwithstanding the incidents of disparate treatment between him and non-minority employees who had committed infractions that were at least as serious. Hence, the district court entered judgment for the defendant. We affirm.

II. Legal Analysis

A. General Framework.

The framework for analyzing claims under Title VII is well established. This Circuit has adopted the burden-shifting format set out in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As step one, the plaintiff is required to prove a prima facie case. In a disparate treatment claim relating to termination for violation of a work rule, a prima facie case is established once the plaintiff shows "(i) that [the plaintiff] belongs to a [protected class]; (ii) that he was discharged for violating a work rule ...; and (iii) that similarly situated non-minority employees ... were treated differently." McAlester v. United Air Lines, 851 F.2d 1249, 1260 (10th Cir.1988). The infractions giving rise to the comparison need not involve exactly the same offenses; they need only be of comparable seriousness. Id. at 1261.

Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824. The defendant's burden is merely to articulate through some proof a facially nondiscriminatory reason for the termination; ⁴ the defendant does not at this stage of the proceedings need to litigate the merits of the reasoning, nor does it need to prove that the reason relied upon was bona fide, nor does it need to prove that the reasoning was applied in a nondiscriminatory fashion. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Curry v. Oklahoma Gas & Elec. Co., 730 F.2d 598, 601-602 (10th Cir.1984); Farmer v. Colorado & Southern Ry. Co., 723 F.2d 766, 768-69 (10th Cir.1983); Mack A. Player, Employment Discrimination Law, § 5.44b(3) at 394-95 (1988). However, the proffered reason for the action taken against the minority employee must be reasonably specific and clear. Burdine, 450 U.S. at 258, 101 S.Ct. at 1096.

Once the defendant has set forth a facially nondiscriminatory reason for the termination, the plaintiff then assumes the normal burden of any plaintiff to prove his or her case at trial. Here, the EEOC was required to prove that Perez's termination was the result of intentional discrimination based on Perez's national origin. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Furnco Construction v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); Carey v. United States Postal Service, 812 F.2d 621, 625-26 (10th Cir.1987). At this point in the proceeding, which is often referred to as the third step in the McDonnell Douglas analysis, the presumption in plaintiff's favor that arose from the establishment of a prima facie case simply "drops from the case." Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10; Curry, 730 F.2d at 601.

The only purpose for the three-step framework in McDonnell Douglas is to provide a basic "order of presentation of proof" so that the controversy can be increasingly brought into focus. See Carey, 812 F.2d at 623. It was never intended to provide a mechanistic approach to what ultimately becomes a straightforward trial about motive. See United States Postal Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10; Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1237 (10th Cir.1991). In the final analysis, the court is required to weigh all the evidence and to assess the credibility of witnesses in order to determine whether the plaintiff was the victim of intentional discrimination based upon protected class characteristics. See Aikens, 460 U.S. at 715-16, 103 S.Ct. at 1481-82; Pullman-Standard v. Swint, 456 U.S. 273, 286-88, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982); Pitre v. Western Electric Co., 843 F.2d 1262, 1266 (10th Cir.1988). The plaintiff can prevail either directly by proving that the employer acted with a discriminatory motive or indirectly by showing that the stated reason for the discharge was a "pretext for the sort of discrimination prohibited by [Title VII]"--that is, that the facially nondiscriminatory reason was "a cover-up for a racially discriminatory decision." McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1826.

The ultimate finding of whether there was intentional discrimination against a protected class is considered a question of fact for the district court to decide. Pullman-Standard, 456 U.S. at 287-88, 102 S.Ct....