Falcon v. General Telephone Co.

• Decision Date: 23 April 1987
• Docket Number: No. 85-1688,85-1688
• Citation: 815 F.2d 317
• Parties: 43 Fair Empl.Prac.Cas. 1040 Mariano S. FALCON, Plaintiff-Appellant, v. GENERAL TELEPHONE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 317

815 F.2d 317

43 Fair Empl.Prac.Cas. 1040

Mariano S. FALCON, Plaintiff-Appellant, v. GENERAL TELEPHONE COMPANY, Defendant-Appellee.

No. 85-1688

United States Court of Appeals,

Fifth Circuit.

April 23, 1987.

Frank P. Hernandez, John E. Collins, Dallas, Tex., for plaintiff-appellant.

E. Russell Nunnally, Jennifer R. Brandeis, Johnson & Swanson, Dallas, Tex., for defendant-appellee.

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

Before BROWN, RUBIN, and GARWOOD, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Mariano Falcon challenges the District Court's decision in his employment discrimination suit against General Telephone Company of the Southwest. He sued individually for discrimination in promotion as well as on behalf of Mexican-Americans as a class for discrimination in hiring. The District Court's decision follows remand from the Supreme Court and the Fifth Circuit to reconsider the case in light of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The District Court ruled that Falcon failed to carry his burden of proof under the standards set out by the Supreme Court in Burdine. Falcon contends that the law of the case doctrine binds the District Court to the findings of fact made by the original trial court. Finding that the District Court properly followed the Supreme Court's mandate to reconsider the case in light of Burdine and that the District Court's findings of fact are not clearly erroneous, we affirm.

The Long and Winding Road

This lawsuit has already twice traversed the spectrum of judicial review and is currently on its third trek. This case was originally tried in the court of the late Judge Sarah T. Hughes who certified the class and found in favor of the Plaintiff Falcon on both his individual claim of discrimination in promotion and his claim of class discrimination in hiring. Falcon v. General Telephone, 463 F.Supp. 315 (N.D.Tex.1978). The Fifth Circuit then affirmed the finding of individual discrimination in promotion and affirmed the class certification but reversed the finding of discrimination against the class and remanded for closer examination of the parties' statistics. Falcon v. General Telephone, 626 F.2d 369 (5th Cir.1980).

While the case was pending appeal to the Supreme Court, the decision in Burdine was handed down by the Supreme Court which modified the standard of proof required to prove a claim of employment discrimination in the Fifth Circuit. ¹

Accordingly, the Supreme Court vacated and remanded this case to be reconsidered in light of its holding in Burdine. General Telephone v. Falcon, 450 U.S. 1036, 101 S.Ct. 1752, 68 L.Ed.2d 234 (1981). We then in turn vacated our decision on the promotion claim but reaffirmed the certification of the class. 647 F.2d 633 (5th Cir.1981).

Before the case reached the District Court on remand, however, the Supreme Court agreed to hear argument on the class certification issue. In a landmark decision significantly altering employment discrimination law in the arena of class actions, the Court decided to do away with the "across-the-board" class definition ² and instead, to require rigorous analysis of the prerequisites of F.R.Civ.P. 23(a). General Telephone v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Our remand was then modified to reflect the Supreme Court's additional holding in this case. 686 F.2d 261 (5th Cir.1982).

On remand, the District Court ³ found that (i) under F.R.Civ.P. 23(a), Falcon was not a proper class representative; ⁴ (ii) the class hiring claims were baseless; and (iii) resolution of Falcon's individual claim required a new trial to adequately apply the Burdine standard of proof. 611 F.Supp. 707 (N.D.Tex.1985).

In applying the new standard of proof, Judge Buchmeyer concluded that the plaintiff had failed to sustain the burden required by Burdine to prove employment discrimination.

Falcon contends that the law of the case doctrine precluded Judge Buchmeyer from making new findings of fact and conclusions of law contrary to Judge Hughes' original findings; and in the alternative, he contends that even if new findings of fact and conclusions of law could properly be made, they were clearly erroneous.

"The Law of the Case"

The doctrine of the law of the case grew out of the practical view that, once an appellate court has decided an issue in a particular case both the District Court and the Court of Appeals should be bound by that decision in any subsequent proceedings in the same case. Clearly, it would not do well for the morale or credibility of the judiciary to have one panel of Circuit Judges second-guessing another panel from the same circuit on the same question of law in the same case. ⁵ As this court has so succinctly stated, the doctrine is rooted in "the salutary and sound public policy that litigation should come to an end." White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967).

Although the doctrine is well established it "is not an inexorable command but a rule of practice limited in scope." Todd Shipyards Corp. v. Auto Transport, S.A., 763 F.2d 745, 750 (5th Cir.1985), citing Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318, 333 (1983); United States v. Horton, 622 F.2d 144, 148 (5th Cir.1980).

To Every Rule There Exists an Exception

This well established rule has several clear exceptions, however, which is true with most rules of law. The doctrine of the law of the case is to be followed unless (i) a subsequent trial produces substantially different evidence; (ii) the prior decision was clearly erroneous and would work manifest injustice; or (iii) controlling authority has since made a contrary decision of law applicable to the issue. Barrett v. Thomas, 809 F.2d 1151 (5th Cir.1987); E.E.O.C. v. International Longshoreman's Association, 623 F.2d 1054 (5th Cir.1980), cert. denied, 451 U.S. 917, 101 S.Ct. 1997, 68 L.Ed.2d 310 (1981), citing White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967).

While our decision which affirmed the original trial court's finding of discrimination against Falcon was awaiting review by the Supreme Court, the Court issued its ruling in Burdine changing the applicable law. Falcon's case, having been decided under the prior legal standard, was vacated by the Supreme Court and remanded for reconsideration under the new standard. With that one fell swoop of the Supreme Court's pen the law of the case doctrine, in as far as it had sealed the finding of discrimination in promotion, was swallowed whole by the third exception to the rule.

Falcon suggests that the Supreme Court only vacated the decision to allow the new standard of law to be incorporated into the District Court's decision, but did not disturb the original finding of fact that General Telephone had discriminated against Falcon. This argument misconceives the effect of vacating a judgment. As this court has stated before, to vacate a judgment "is to take away from it any precedential affect". Troy State University v. Dickey, 402 F.2d 515, 517 (5th Cir.1968); Tyson v. Cazes, 363 F.2d 742 (5th Cir.1966). In essence, when a judgment is vacated "all is effectually extinguished." Lebus v. Seafarer's International Union, Etc., 398 F.2d 281 (5th Cir.1968).

When the Supreme Court vacated Judge Hughes' decision, it swept away all that was tied to that judgment. This included all findings of fact derived from applying the pre-Burdine standard of proof to the evidence. Those findings were integral to her conclusion that General Telephone had failed to prove the individuals promoted over Falcon were better qualified than he, resulting in a judgment that General Telephone was guilty of discrimination.

Judge Buchmeyer heard virtually the same evidence presented to Judge Hughes and, although he gave thoughtful consideration to Judge Hughes' determinations, he concluded that General Telephone had met its burden of proof by presenting credible evidence that the individuals selected were at least as qualified as Falcon. The District Court further concluded that Falcon failed to present sufficient evidence to establish that General Telephone's reasons for its employment decision were a pretext for discriminating against him. This being so, the District Court properly determined that Falcon had failed to prove his case and entered judgment for General Telephone.

Unless Clearly Erroneous ...

The finding of whether or not discrimination has occurred is a finding of fact which, under F.R.Civ.P. 52(a), "shall not be set aside unless clearly erroneous, and due regard shall be given to the trial court to judge the credibility of the witnesses." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985); Pullman v. Swint, 456 U.S. 273, 285-286, 287 n. 16, 102 S.Ct. 1781, 1789 n. 16, 72 L.Ed.2d 66, 78 n. 16 (1982). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948).

Judge Buchmeyer's purpose for holding a new trial was so that he could fairly judge the demeanor of the witnesses rather than attempt to infer credibility determinations from Judge Hughes' findings of fact--credibility determinations based on reasons which were not entirely clear from the record.

To warrant a trial on employment discrimination, Falcon first had to establish a prima facie case by showing that he was a member of a protected class, he was qualified for the position which he sought, he was rejected, and the employer continued to search to fill the position. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Falcon, a Mexican-American, established his prima facie case by showing he was a...