Gibson v. American Broadcasting Companies, Inc., No. 22

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before FEINBERG and CARDAMONE, Circuit Judges, and METZNER; CARDAMONE
• Citation: 892 F.2d 1128
• Parties: 54 Fair Empl.Prac.Cas. (BNA) 1435, 52 Empl. Prac. Dec. P 39,546 David Leslie GIBSON, Ronald O. Hope, and Angelo Rios, Plaintiffs-Appellants, v. AMERICAN BROADCASTING COMPANIES, INC., Robert Benson, Vice President, News & Sports, ABC Radio Network: Peter Flannery, General Manager of News Programming, ABC News Network; Richard Dressel, Domestic Assignments Manager, ABC Radio News Network; and Jeffrey Sprung, News Director, FM Radio News Network of American Broadcasting, Inc., Defendants-Appellees. ocket 89-7286.
• Docket Number: D,No. 22
• Decision Date: 22 December 1989

Page 1128

892 F.2d 1128 54 Fair Empl.Prac.Cas. (BNA) 1435,
52 Empl. Prac. Dec. P 39,546 David Leslie GIBSON, Ronald O. Hope, and Angelo Rios,
Plaintiffs-Appellants,
v.
AMERICAN BROADCASTING COMPANIES, INC., Robert Benson, Vice
President, News & Sports, ABC Radio Network: Peter
Flannery, General Manager of News Programming, ABC News
Network; Richard Dressel, Domestic Assignments Manager, ABC
Radio News Network; and Jeffrey Sprung, News Director, FM
Radio News Network of American Broadcasting, Inc.,
Defendants-Appellees. No. 22, Docket 89-7286. United States Court of Appeals,
Second Circuit. Argued Oct. 10, 1989.
Decided Dec. 22, 1989.

Page 1130

Warner J. Bennia, New York City, for plaintiffs-appellants.

Philip M. Berkowitz, New York City (Rhonda J. Moll, Epstein Becker & Green, P.C., New York City, of counsel), for defendants-appellees.

Before FEINBERG and CARDAMONE, Circuit Judges, and METZNER, District Judge. ^*

CARDAMONE, Circuit Judge:

On this appeal from judgments summarily dismissing appellants' complaints alleging discrimination in employment, the employer questions whether proof comparing appellants' performance with that of other employees is admissible. The old adage that comparisons are odious, because so often they are not pertinent--making one thing a standard for another which has no relation to it--is no less true today. Nevertheless, as a form of proof in an employment discrimination case, we think relevant comparisons are properly considered.

BACKGROUND

The parties to this appeal are David L. Gibson, Ronald O. Hope and Angelo Rios (plaintiffs or appellants) who brought suit against their employer American Broadcasting Companies, Inc. and four of its supervisory officials--defendants Robert Benson, Peter Flannery, Richard Dressel and Jeffrey Sprung (collectively ABC or ABC Radio News), for claimed employment discrimination. The instant action was instituted by plaintiffs in the United States District Court for the Southern District of New York (Daronco, J.) under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. (McKinney 1982 & Supp.1989). Plaintiffs assert that defendants discriminated against them in the terms and conditions of their employment on the basis of their race, color, or national origin.

Gibson, a correspondent for ABC Radio News since 1976, asserts that he was consistently denied regularly scheduled weekends off because he is black. Hope, a newswriter with ABC Radio News also since 1976, alleges that his assignment to editorial duties was unfairly delayed because he is black. Rios, a former desk assistant with ABC Radio News from 1976 to 1985, claims he was wrongfully denied a newswriter job because he is Hispanic.

On May 4, 1988 Judge Richard Daronco granted summary judgment in favor of ABC on the claims of Gibson and Hope, Gibson v. American Broadcasting Companies, Inc., 687 F.Supp. 786 (S.D.N.Y.1988), but denied ABC's motion for summary judgment in Rios' case. Due to the unfortunate death of Judge Daronco, the matter was reassigned to Southern District Judge Robert W. Sweet who, on November 14, 1988, denied Gibson's and Hope's motions for reconsideration of Judge Daronco's decision. Gibson v. American Broadcasting Companies, Inc., 700 F.Supp. 707 (S.D.N.Y.1988). Judge Sweet conducted a non-jury trial with respect to Rios' claims that began on February 3, 1989. After a four-day trial, the district judge rendered a

Page 1131

decision from the bench on February 9, 1989 dismissing Rios' complaint. Gibson, Hope and Rios subsequently filed this joint appeal. DISCUSSION

I Law Applicable to Gibson's and Hope's Claims

Before discussing the merits of Gibson's and Hope's claims of discrimination, it is necessary to set forth the legal principles applicable to establishing a cause of action for employment discrimination; and, next, because plaintiffs' complaints were dismissed on motions for summary judgment, to examine the proper use of summary judgment in this sort of case.

A. Cause of Action for Employment Discrimination

To prove that ABC discriminated in its employment decisions affecting them, Gibson and Hope first were required to prove a prima facie case. A prima facie case is established when a plaintiff shows that: (1) he or she is a member of a statutorily protected class; (2) he or she is qualified for the position applied for; (3) the employer denied plaintiff the job sought; and (4) after such denial the employer continued to seek applicants for the position with qualifications similar to plaintiff's. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If plaintiff succeeds in establishing a prima facie case the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for turning plaintiff down. Assuming defendant gives a valid reason, plaintiff then must show by a preponderance of the evidence that defendant's articulated reason was pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

In the instant case both plaintiffs are black and as such are members of a racial minority statutorily protected. Gibson applied to be scheduled weekends off; Hope applied for acting editor assignments. They assert in their complaints that they were qualified for these employment opportunities which were denied them. Subsequent to plaintiffs' requests, other ABC Radio News employees with similar qualifications obtained the assignments Gibson and Hope unsuccessfully sought.

Judge Daronco ruled that even assuming that Gibson and Hope had proved a prima facie case of disparate treatment, they had presented no evidence that ABC's reasons for its employment decisions were pretextual. See 687 F.Supp. at 793. Because of the procedural posture of this case--dismissal on a summary judgment motion--we review the allegations de novo drawing all inferences in appellants' favor because they are the nonmoving parties. See Burtnieks v. City of New York, 716 F.2d 982, 985-86 (2d Cir.1983). In reviewing whether plaintiffs initially stated a prima facie case, we assume that the allegations contained in the plaintiff's respective complaints regarding their qualifications for the positions they sought are true. Thus, we are persuaded that these appellants made out a prima facie case.

It also seems clear that ABC Radio News articulated a legitimate nondiscriminatory reason for management's decision in each case, namely, that neither Gibson or Hope were qualified for the positions they sought. After the employer has given a legitimate reason, for purposes of determining whether ABC's reasons were pretextual, it may not be assumed--as it was in determining whether a prima facie case was stated--that appellants' allegations that they were qualified are true. At this stage of the proceedings plaintiffs are held to the burden of proof ultimately needed to prevail at trial, and must submit proof on the issue of pretext by a preponderance of the evidence. There is an exception to this rule on burden of proof. If ABC Radio News' decision is found to be a mixture of legitimate and illegitimate motives, that is to say, one with mixed motives, the employer then has the burden of proof by a preponderance of the evidence that it would have made the same employment decision, absent the discriminatory motive. See Price Waterhouse v. Hopkins,

Page 1132

--- U.S. ----, 109 S.Ct. 1775, 1788-89, 1792, 104 L.Ed.2d 268 (1989). Here that proof would require ABC to show that race made no difference in ABC's decisions. On remand, the district court should determine whether with respect to pretext this is a mixed motive case.

B. Summary Judgment

We turn next to the use of summary judgment generally, and in a Title VII case particularly. Summary judgment is a procedural device that may...