Mallory v. Booth Refrigeration Supply Co., Inc.

• Decision Date: 23 August 1989
• Docket Number: No. 88-2574,88-2574
• Citation: 882 F.2d 908
• Parties: 50 Fair Empl.Prac.Cas. 1066, 51 Empl. Prac. Dec. P 39,262 Erma R. MALLORY; Joyce S. Byrd Plaintiffs-Appellants, and Barbara A. Hill; Vivian E. Reid Plaintiffs, v. BOOTH REFRIGERATION SUPPLY CO., INC., a/k/a Refrigeration Supply Co., a/k/a Booth Supply Co. Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 908

882 F.2d 908

50 Fair Empl.Prac.Cas. 1066,

51 Empl. Prac. Dec. P 39,262

Erma R. MALLORY; Joyce S. Byrd Plaintiffs-Appellants, and Barbara A. Hill; Vivian E. Reid Plaintiffs, v. BOOTH REFRIGERATION SUPPLY CO., INC., a/k/a Refrigeration

Supply Co., a/k/a Booth Supply Co. Defendant-Appellee.

No. 88-2574.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 9, 1989.

Decided Aug. 23, 1989.

Henry L. Marsh, III (D. Eugene Cheek, Hill, Tucker & Marsh; Jay J. Levit, Levit & Mann on brief), for plaintiffs-appellants.

Cynthia Eppes Hudson (Eva S. Tashjian-Brown, McGuire, Woods, Battle & Boothe on brief), for defendant-appellee.

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.

BUTZNER, Senior Circuit Judge:

Erma Mallory and Joyce Byrd appeal from a district court judgment in favor of Booth Refrigeration Supply Company (Booth Supply). Mallory and Byrd sued Booth Supply under Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Sec. 1981 alleging race discrimination in wages and promotions. After a bench trial, the district court found that there had been no discrimination. Because its judgment is supported by the evidence, we affirm.

I

Booth Supply is a wholesale supplier of refrigeration, heating, and air conditioning equipment. The company is a family-owned business begun by E.L. Booth and his brother. E.L. Booth personally managed the company until his death in June 1987. Both Byrd and Mallory are black and have been employed in the main office in Richmond, Virginia, since 1975 and 1976 respectively. Byrd is an accounts receivable clerk and Mallory is a government billing clerk; both work in the accounts receivable department.

E.L. Booth made all employment decisions at issue in this case. He promoted employees based on his personal observations. There were no written policies on promotions, and the company did not post announcements about available positions.

In the three years preceding Byrd's and Mallory's complaint, three supervisory positions became available in the main office, one of which was in Byrd's and Mallory's department. This position opened in the summer of 1986, and E.L. Booth promoted a white employee, Lori Thorp, to the job in October 1986. Subsequently, Mallory and Byrd filed a complaint with the EEOC and in due course instituted this action alleging that E.L. Booth's failure to promote them instead of Lori Thorp was due to racial discrimination.

E.L. Booth also determined all wages, and Byrd and Mallory alleged that he did so in a discriminatory manner. They claimed that similarly situated white employees were paid substantially more than they were paid.

The district court held that Mallory and Byrd failed to produce any evidence that they would have been promoted but for their race. With respect to the discriminatory pay claim, the district court found no evidence that black clerical employees were paid less than similarly situated white clerical employees. Instead, the court found that Byrd and Mallory were among the highest paid clerical employees and that white employees who were paid more worked in different jobs and were therefore not similarly situated.

II

The trial court's determination that Booth Supply did not discriminate against Mallory and Byrd is a factual one and must not be disturbed on appeal unless it is clearly erroneous. See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). To reverse the trial court's finding under the clearly erroneous standard of review, we must be "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

In Patterson v. McLean Credit Union, --- U.S. ----, 109 S.Ct. 2363, 2376-79, 105 L.Ed.2d 132 (1989), the Court recently explained that where a "promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer," a claim of discrimination with respect to a promotion is "actionable under [42 U.S.C.] Sec. 1981." --- U.S. at ----, 109 S.Ct. at 2376.

Promotion from clerk to supervisor with a consequent increase in responsibility and pay satisfies this test. In this event the framework of proof for disparate treatment claims--that is, whether the employer intentionally discriminated against the employee--is the same for actions brought under Title VII, or Sec. 1981, or both statutes. See Patterson, --- U.S. at ----, 109 S.Ct. at 2378. Proof of a prima facie case gives rise to an inference of discrimination. ¹ To rebut this inference, the employer must present evidence that the employee was rejected, or another applicant was selected, for a legitimate nondiscriminatory reason. Because an employee has the burden of proving intentional discrimination, she must have an opportunity to prove that the employer's reasons were not the true reasons. See --- U.S. at ----, 109 S.Ct. at 2378. In Patterson, the Court cautioned that in implementing this familiar framework, the employee is not required to prove that she is better qualified than the successful applicant. The employee can seek to show that the employer's reason was pretextual by introducing evidence of racial discrimination with respect to other conditions of employment. --- U.S. at ----, 109 S.Ct. at 2378. Fortunately, the district court anticipated Patterson and at the urging of the plaintiffs examined every questioned aspect of the treatment of black employees at Booth.

III

The evidence disclosed that E.L. Booth considered employees within the accounts receivable department for the supervisory position. He reviewed their job experience, dependability, absenteeism, quality of performance, cooperation with other departments, willingness to work overtime, and ability to get along with and lead coworkers. Booth Supply presented evidence to show that Thorp was superior to Mallory and Byrd in all relevant categories. Byrd had a record of absenteeism and her overall job performance was not rated as highly as was Thorp's. In addition, customers had complained about her handling of accounts. Mallory handled government billing only and apparently refused to perform anything other than her assigned task or to work overtime.

In addition to claiming that they were better qualified than Thorp, Mallory and Byrd assert that E.L. Booth's use of subjective criteria and his refusal to make seniority the dispositive factor suggests that he was motivated by racial animus. They emphasize that they have been with the company much longer than Thorp.

In Part IV, we will discuss the role of subjective criteria for promotion under a disparate impact theory of proof of discrimination. For present purposes, it is sufficient to note that, although the use of subjective criteria is relevant to a claim of racial discrimination, standing alone it does not prove a violation of either Title VII or Sec. 1981. See Page v. Bolger, 645 F.2d 227, 230 (4th Cir.1981). The district court found that absenteeism, customer complaints, refusal to perform duties other than those assigned, and refusal to work overtime were valid criteria on which to base a denial of promotion. The court also found that there was no evidence that seniority was ever a factor in making promotion decisions for any supervisory position at Booth Supply.

There was conflicting evidence concerning the company's record of promoting blacks. The district court found that E.L. Booth had promoted a number of blacks to supervisory positions in other departments of the company. Byrd and Mallory contend that these promotions were not bona fide but mere tokenism.

During the relevant time period Booth promoted three black employees and four white employees to supervisory positions. Absent more solid evidence supporting Byrd's and Mallory's claim of tokenism, the district court's finding of no significant disparity in Booth's promotion of blacks and whites is not clearly erroneous.

Mallory and Byrd cite several incidents of racial tension in the company to support their contention that E.L. Booth was prejudiced against blacks and used subjective criteria in order to avoid promoting blacks. They also testified that he seemed uncomfortable around blacks.

Most of the episodes occurred in branch offices, not the main office where Mallory, Byrd, and E.L. Booth worked, and they occurred more than four years before the complaint was filed. Although most of the episodes were certainly offensive, they involved other employees in the company's branch offices and not E.L. Booth himself. Moreover, the company introduced evidence that E.L. Booth did not condone these activities but took corrective action. Finally, neither Byrd nor Mallory was ever the recipient of any racial insult; rather they testified that they did not experience racial hostility at the company.

We find no merit in Mallory's and Byrd's assertion that the district court erred in finding that they were not qualified for the two promotions which were available in the data entry department. The district court found that neither Mallory nor Byrd had data entry experience. Byrd and Mallory contest this finding on the basis that they both received instruction in the general skills necessary for office clerical work, including data entry, at business schools they attended after high school. While they may have had some training in data entry, it...