Green v. McDonnell Douglas Corp.

• Decision Date: 28 January 1976
• Docket Number: No. 75--1198,75--1198
• Citation: 528 F.2d 1102
• Parties: 12 Fair Empl.Prac.Cas. 161, 11 Empl. Prac. Dec. P 10,663 Percy H. GREEN, Appellant, v. McDONNELL DOUGLAS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1102

528 F.2d 1102

12 Fair Empl.Prac.Cas. 161,

11 Empl. Prac. Dec. P 10,663

Percy H. GREEN, Appellant, v. McDONNELL DOUGLAS CORPORATION, Appellee.

No. 75--1198.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 10, 1975.

Decided Jan. 28, 1976.

Michael J. Hoare, St. Louis, Mo., for appellant.

Thomas C. Walsh, St. Louis, Mo., for appellee.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Appellant Percy Green has taken a timely appeal from a final order of the district court ¹ denying Green's civil rights suit against McDonnell Douglas Corporation alleging racial discrimination in employment in violation of sections 703(a)(1) and 704(a) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e--2(a)(1) and 2000e--3(a). The district court's memorandum opinion is reported at 390 F.Supp. 501 (E.D.Mo.1975). The district court tried the case pursuant to remand from the United States Supreme Court. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). ² We affirm the decision of the district court.

Appellant was employed by the defendant between August 1956 and August 1964 when he was laid off because of a general reduction in work force. During the period from August 1964 until July 1965 appellant participated in civil rights demonstrations including a 'stall-in' during which Green and others obstructed traffic on public roads leading to and from defendant's plant. ³ Appellant was arrested and pleaded guilty to the crime of obstructing traffic in connection with his role in the 'stall-in.' In July 1965 appellant applied but was rejected for employment with defendant for an advertised job opening for which he was qualified. Defendant's stated reason for its refusal to rehire Green was his earlier participation in illegal demonstrations against the company.

Following defendant's refusal to rehire plaintiff, Green commenced this action in the district court alleging violations of section 704(a) (discrimination based on protected civil rights demonstrations) and, by amendment, section 703(a)(1) (discrimination based on race). The trial court dismissed the section 703(a)(1) claim because the Equal Employment Opportunity Commission had previously failed to make a finding that reasonable cause existed that a violation of that section had occurred. The court also found that defendant's refusal to rehire Green was based on Green's participation in illegal demonstrations against defendant and not on protected civil rights activity. Accordingly, relief was denied on the section 704(a) claim. The district court's memorandum opinion is reported at 318 F.Supp. 846 (E.D.Mo.1970).

On appeal a panel of this court, with one judge dissenting, reversed the trial court's dismissal of appellant's section 703(a)(1) claim and ordered a remand for trial on that issue. ⁴ Green v. McDonnell Douglas Corp., 463 F.2d 337 (8th Cir. 1972). The Supreme Court granted defendant's petition for writ of certiorari. Although agreeing with the panel majority that Green had been denied a fair opportunity for discovery and trial under his section 703(a)(1) claim on discrimination and that unlawful conduct against an employer is a valid ground for rejection, the Supreme Court nevertheless held that the majority decision 'seriously underestimated the rebuttal weight to which petitioner's reasons were entitled' under the section 704(a) claim. 411 U.S. at 803, 93 S.Ct. at 1825. The Court held that defendant's stated reason--Green's unlawful protest activity directed at McDonnell Douglas Corporation--sufficed to rebut plaintiff's prima facie case. However, since Green's section 703(a)(1) claim of racial discrimination in employment was not squarely before the district court, the Court ordered a remand to the district court for the purpose of determining whether Green's conduct was used as a pretext by McDonnell Douglas Corporation for the type of discrimination prohibited by section 703(a)(1). The Supreme Court stated the relevant factual inquires on remand:

On remand, respondent (Green) must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the 'stall-in' were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.

Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner's treatment of respondent during his prior term of employment; the petitioner's reaction, if any, to respondent's legitimate civil rights activities; and petitioner's general policy and practice with respect to minority employment. On the latter point, statistics as to petitioner's employment policy and practice may be helpful to a determination of whether petitioner's refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. (Citations omitted.) In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.

411 U.S. at 804--05, 93 S.Ct. at 1826. (Footnotes omitted.)

In effect the Supreme Court, in view of the employer's statement as to its reason for discharge, stated that the employer had satisfactorily offered rebuttal evidence to the prima facie case and that the remaining issue on retrial was whether the employee could demonstrate that petitioner's assigned reason was pretextual or discriminatory in its application. The issue on remand was factual and quite narrow. We are bound by the 'clearly erroneous' standard found in Fed.R.Civ.P. 52(a).

In an attempt to prove racial discrimination appellant relies heavily on the occurrences in 1965, 1967 and 1972 of nonracial labor disputes at McDonnell Douglas Corporation. In remanding this case to the district court, the Supreme Court held that defendant's refusal to rehire plaintiff might be violative of Title VII if it were shown that white employees engaged in acts against defendant of 'comparable seriousness' to those of plaintiff but were not disciplined. 411 U.S. at 804, 93 S.Ct. 1817. Green contends that the labor strikers' violence, threats, mass picketing and traffic tieups were at least as unlawful and disruptive as his own 'stall-in' and 'lock-in' activities. Several employees were arrested in connection with these labor disputes. However, those arrested were not discharged by defendant because as a part of subsequent strike-settlement negotiations all strikers were granted amnesty. The arrested workers were white. Green argues that since he, a black man, was disciplined by defendant for similar activity and white strikers were not discharged, a case of racial discrimination has been shown. We disagree.

We think appellant's attempt to compare the lack of discipline of striking employees in the nonracial labor strikes of 1965, 1967 and 1972 with appellant's unlawful 'stall-in' activities is without merit for several reasons. First, the evidence reveals that the labor strikes were participated in by both black and white employees. No preferential treatment was shown whites in defendant's decision not to discipline striking employees. Whites and blacks were treated alike. Defendant's decision not to discipline striking employees was a bargained-for agreement with the labor unions involved. In return, defendant received the union's promise to return to work immediately. It was a business decision motivated by a desire to resume production and not by any racially discriminatory reasons. As the Supreme Court said in NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 259, 59 S.Ct. 490, 497, 83 L.Ed. 627 (1939):

The important point is that (the employer) stood absolved by the conduct of those engaged in the 'sit-down' from any duty to reemploy them, but respondent was nevertheless free to consider the exigencies of its business and to offer reemployment if it chose.

Furthermore, the striking employees were attempting to improve their bargaining position with the defendant. Appellant's activities, on the other hand, were by a non-employee with the sole purpose of harassing the defendant. Appellant had no bargaining leverage. The record reveals no instances where defendant offered employment to a non-employee who had previously engaged in unlawful demonstrations against it. ⁵

Appellant offered statistical evidence on remand to show defendant's 'general policy and practice with respect to minority employment.' 411 U.S. at 804--05, 93 S.Ct. at 1825. For example, appellant showed with respect to the years 1960--1965 that defendant's nonwhite work force never exceeded 6.4% of the total, while 14% of the St. Louis Standard Metropolitan Statistical Area was nonwhite. No showing was made indicating what percentage of job applicants qualified for positions with defendant were black. More relevant, we think, are percentages cited by the district court that show in 1965, the year appellant was rejected, 11% of all persons hired by defendant were nonwhite and in 1966 22% of those hired were nonwhite. Also persuasive is the district court's finding, supported by the record, that in 1965, of the trainees hired to fill the type of position appellant applied for, 15% were black. Our examination of the relevant statistical data actually supports defendant's position with respect to racial discrimination in a general sense.

Appellant contends that the evidence shows defendant discriminated against him with respect to his previous employment with defendant and his subsequent layoff in August 1964. Such discrimination, if true, would be...