Elmore v. Capstan, Inc., 93-3352

• Citation: 58 F.3d 525
• Decision Date: 19 June 1995
• Docket Number: No. 93-3352,93-3352
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1393, 66 Empl. Prac. Dec. P 43,674 William E. ELMORE, Plaintiff-Appellant, v. CAPSTAN, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 525

58 F.3d 525

68 Fair Empl.Prac.Cas. (BNA) 1393,

66 Empl. Prac. Dec. P 43,674

William E. ELMORE, Plaintiff-Appellant, v. CAPSTAN, INC., Defendant-Appellee.

No. 93-3352.

United States Court of Appeals Tenth Circuit.

June 19, 1995.

Victor A. Bolden (Eric Schnapper, Elaine R. Jones, Charles Stephen Ralston and Theodore M. Shaw, NAACP Legal Defense and Educational Fund, Inc., and Pantaleon Florez, Jr., Florez & Frost, P.A., Topeka, KS, on the brief), New York City, for plaintiff-appellant.

Michael W. Merriam, Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, KS, for defendant-appellee.

SEYMOUR, Chief Judge, SETH, Circuit Judge, and KANE, Senior District Judge ^*.

KANE, Senior District Judge.

Plaintiff employee, an African-American, initiated this Title VII action against his employer claiming his discharge for violating a work rule was the result of intentional discrimination based on race. The employee alleged disparate treatment, contending defendant disciplined non-minority employees more leniently for similar conduct. After a two-day bench trial, the district court found that while the employee had established a prima facie case of disparate treatment, he had not established this treatment was the result of intentional discrimination based on race. The district court entered judgment in favor of the employer, and the employee appealed.

On appeal, the employee argues reversal is required because the district court's judgment was premised on the erroneous finding that "no " evidence of discriminatory animus had been adduced at trial. The employee points to the district court's finding that non-minorities were treated more leniently for similar infractions on the job, as well as its determination that certain of the explanations for the employee's discharge given by the employer were not credible. While we agree such evidence can be the basis from which a trier of fact may infer discriminatory intent, such an inference is not compelled as a matter of law. The ultimate question of whether intentional discrimination occurred is one for the trier of fact--in this case the district court--to decide. The determination is subject to the clearly erroneous standard of review. After reviewing the district court's findings in light of the record before us, we find no clear error. Accordingly, we affirm.

I. Facts

William E. Elmore is an African-American machinist who was hired as a laborer in the sheet metal department of Seymour Foods, Inc. ("Seymour") in November of 1986. Elmore was considered by his immediate supervisor to be an average employee who never refused to perform tasks assigned to him and never received a written reprimand about either his performance or his attendance at Seymour. Elmore v. Capstan, No. 92-4004-DES, 1993 WL 290259, at * 2 (D.Kan. July 8, 1993). Nevertheless, Seymour fired Elmore on December 19, 1990 purportedly for failing timely to notify his supervisor of an extended absence due to illness, as well as for falsifying his return-to-work slip. Elmore filed his Complaint in this action on January 6, 1992, naming Seymour as defendant. Seymour, in conjunction with a sale of assets in October 1992, later changed its name to Capstan, Inc. ("Capstan") and Capstan was substituted as the party defendant in this action.

The dispute between Elmore and Capstan began on Saturday, December 8, 1990, when Elmore became sick with what was eventually diagnosed as an upper respiratory infection. His last day at work was Friday, December 7, 1990. The following day, Saturday, December 8th, Elmore fell ill and elected not to work an overtime shift. He was not scheduled to work Sunday, December 9th.

Elmore was still ill on Monday, December 10th, and made an appointment to see his physician Dr. Cohen on Tuesday, December 11th. Dr. Cohen diagnosed Elmore's illness as a respiratory infection and prescribed a five-day supply of cough medicine and an antibiotic. He also gave Elmore a slip authorizing him to return to work on Friday, December 14, 1990. Elmore's first contact with Capstan regarding his illness and absence from work was on Wednesday, December 12, when his wife called supervisor Gary Thompson to advise him her husband was ill. At that time, Elmore's wife indicated Elmore would probably be back to work on Friday, December 14th. ¹

Elmore did not return to work on Friday. Instead, Elmore's wife went to Dr. Cohen's office to request an extension of time for Elmore to be off work because Elmore still was not feeling well. Dr. Cohen wrote out a new return-to-work slip, permitting Elmore to return to work on December 17, 1990, the following Monday. Elmore did not return to work until Wednesday, December 19. On that day, Elmore submitted the return-to-work slip signed by Dr. Cohen. The date on the slip had been altered from December 17 to December 19 by changing the number "7" to a "9."

Elmore was not permitted to work on December 19th. Instead, supervisor Thompson told him the new operations manager, Don Appleby, would have to be consulted. ² Appleby told Elmore he had violated company policy by failing to call in and by altering the date on the return-to-work slip. Elmore was asked to go home and await the company's investigation and decision with regard to his absence. After a telephone conversation with Dr. Cohen, in which Dr. Cohen stated he had only authorized Elmore to be off work until December 17th and had not altered the return-to-work date on the slip to December 19th, ³ Appleby consulted with Elmore's supervisors and made the decision to terminate Elmore's employment. At 2:00 p.m. on December 19th, Elmore was notified that his employment was terminated for failure to comply with company policy regarding his absence and for falsifying the date on the return-to-work slip issued by Dr. Cohen. ⁴

Elmore asserts Capstan fired him because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e-2(a)(1). ⁵ Citing other incidents at Capstan involving serious violations of company policy, Elmore argued that non-minority employees were subject to more lenient discipline for comparably classified offenses. He referenced incidents at Capstan where non-minority employees were disciplined for falsifying company records and for excessive absenteeism who, instead of being fired, were given written warnings about the possibility of termination if the unacceptable conduct occurred again. Elmore presented no evidence, however, that such employees had been absent without prior notice or company approval for seven consecutive work days, or that they had altered a doctor's return-to-work slip.

Applying the three-pronged framework established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the district court determined first that Elmore had established a prima facie case of disparate treatment at trial by showing (1) he was a member of a protected class; (2) he was discharged for violating a work rule; and (3) non-minority employees were subjected to more lenient discipline for infractions classified as comparable in seriousness. ⁶ Elmore v. Capstan, 1993 WL 290259 at * 4 (D.Kan. July 8, 1993). Second, the district court determined Capstan had met its burden of producing evidence of facially legitimate, nondiscriminatory reasons for Elmore's discharge in that Elmore failed to comply with company policy regarding absences from work and appeared to have altered his return-to-work slip. Id. Finally, the district court found Capstan's non-discriminatory reasons for discharging Elmore were not a pretext for racial discrimination, and concluded Elmore had failed to carry his ultimate burden of establishing his discharge was the result of intentional discrimination based on his race. Id. at * 5.

II. Analytical Framework

To prevail on a claim of wrongful discharge based on race under Title VII, plaintiff has the ultimate burden of proving, either directly or indirectly, that his discharge was motivated by racial bias. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Where there is inadequate direct evidence of discrimination (e.g., oral or written statements on the part of a defendant showing a discriminatory motivation), the United States Supreme Court has established a three-step burden-shifting format whereby plaintiff may prove his case through indirect, i.e., circumstantial, evidence. McDonnell Douglas, 411 U.S. at 801-05, 93 S.Ct. at 1824-25; Burdine, 450 U.S. at 252-56, 101 S.Ct. at 1093-95. It is well settled in this circuit that the McDonnell Douglas format is applicable to the analysis of Title VII claims of disparate treatment. Sanchez v. Philip Morris, Inc., 992 F.2d 244 (10th Cir.1993); EEOC v. Flasher, 986 F.2d 1312, 1316 (10th Cir.1992).

Under the McDonnell Douglas analysis, plaintiff has the initial burden of establishing a prima facie case of intentional discrimination. The standard in this circuit for doing so on a disparate treatment claim based upon discharge for violation of a work rule is set out in detail in Flasher. There we held a plaintiff may establish a prima facie case of disparate treatment by showing (1) he is a member of a protected class; (2) he was discharged for violating a work rule and (3) similarly situated non-minority employees were treated differently. Flasher, 986 F.2d at 1316 (citing McAlester v. United Air Lines, 851 F.2d 1249, 1260 (10th Cir.1988)). When comparing the relative treatment of similarly situated minority and non-minority employees, the comparison need not be based on identical violations of identical work rules; the violations need only be of "comparable seriousness." Id. (citing McAlester, 851 F.2d at 1261).

Once plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a facially nondiscriminatory reason for its employment action. McDonnell Douglas, 411 U.S. at 802-03, ...