Martinez v. El Paso County

• Decision Date: 01 August 1983
• Docket Number: No. 82-1327,82-1327
• Citation: 710 F.2d 1102
• Parties: 32 Fair Empl.Prac.Cas. 747, 32 Empl. Prac. Dec. P 33,753 Lino MARTINEZ, Plaintiff-Appellee Cross-Appellant, v. EL PASO COUNTY, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1102

710 F.2d 1102

32 Fair Empl.Prac.Cas. 747,

32 Empl. Prac. Dec. P 33,753

Lino MARTINEZ, Plaintiff-Appellee Cross-Appellant, v. EL PASO COUNTY, Defendant-Appellant Cross-Appellee.

No. 82-1327.

United States Court of Appeals Fifth Circuit.

Aug. 1, 1983.

Todd Chenoweth, George Rodriguez, Jr., El Paso, Tex., for defendant-appellant cross-appellee.

Thomas A. Spieczny, El Paso, Tex., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Western District of Texas.

Before GEE, GARZA and TATE, Circuit Judges.

GARZA, Circuit Judge:

Plaintiff brought this suit under Title VII, 42 U.S.C. Sec. 2000e et seq., against his former employer, the County of El Paso, alleging discriminatory discharge from employment. ¹ After receiving an adverse judgment on the merits, the County of El Paso decided to pursue an appeal based upon its contention that the court below applied incorrect legal standards to plaintiff's disparate treatment case. Plaintiff presents, as a point of cross-appeal, the argument that the trial court erred in refusing to honor the stipulation contained in the pretrial order concerning back pay. A thorough examination of the record convinces us that neither contention has merit. For this reason, we affirm the judgment reached below.

I

Plaintiff in this action, Lino Martinez, worked in the El Paso Juvenile Probation Department for more than two years. He began his employment in October of 1975 as a part-time employee but very soon became a full-time records clerk. Martinez was the only male employed in a clerical position. His job involved typing information cards for all juvenile offenders, typing reports of probation officers about juvenile offenders and preparing statistical sheets. In addition, Martinez routinely assisted the other secretaries when they needed help.

On January 1, 1978, Javier Banales was appointed to the position of Chief Juvenile Probation Officer. He immediately began to reorganize the department in which Martinez worked. He testified that, prior to beginning his new job, he had studied the department and decided upon a number of changes. First and foremost, he felt that it was essential that each secretary be able to perform all tasks of the department. Before this time, secretaries were assigned specific tasks, although they performed the other jobs when necessary.

Since the major function of this department was to complete typing assignments, Banales concluded that one way to improve the department was to upgrade the quality of typing. At the trial of this case, he testified that this led him to fire plaintiff on January 6th--only three working days after he had started his new job. Banales stated that plaintiff lacked "depth of secretary skills," which meant that he did not demonstrate "strong extensive typing skills." Record on Appeal, vol. 2 at 46. Banales admits that he fired Martinez because of a skills deficiency. The notice of termination, however, attributes the dismissal to the change in department structure which eliminated his position.

In response to defendant's justification for the termination, Martinez points out that the office receptionist, Margie Zubia, was retained despite the fact that her typing skills were inferior to plaintiff's, and she had served less than two months on the job. She was terminated two months later, but not because of weak typing skills. Instead, she was dismissed for excessive absenteeism. Defendant justifies the personnel decision to fire Martinez before Zubia by stating that (1) the county had no last hired-first fired policy; (2) he had not yet started the policy of rotating secretaries; and (3) the plaintiff's typing skills were inadequate for any job. Interestingly enough, plaintiff was never warned about the alleged deficiency in his typing skills. Neither were those skills ever tested by Banales nor anyone else in the department.

II

In a disparate treatment case, plaintiff carries the initial burden of proving a prima facie case of sex discrimination. Plaintiff must prove by a preponderance of the evidence that (i) he is a member of a protected class; (ii) he was qualified for the job from which he was discharged; (iii) he was discharged; and (iv) after the discharge, the employer filled the position with a woman, or a woman having comparable or lesser qualifications was retained. Meyer v. Brown & Root Construction Co., 661 F.2d 369, 371 (5th Cir.1981); Marks v. Prattco, Inc., 607 F.2d 1153, 1155 (5th Cir.1979).

Since Title VII proscribes gender-based discrimination, plaintiff certainly satisfies the first element. The evidence discloses that he was qualified for the position of record clerk; consequently, the second element is met. Thirdly, plaintiff was clearly discharged from his job and finally, Martinez was discharged at a time when an inferior employee worked in the same department. She was retained until unexcused absences forced her termination several months later. The court below correctly concluded that plaintiff established a prima facie case of discrimination.

In order to rebut the presumption of discrimination created by the prima facie case, the defendant must "articulate some legitimate, nondiscriminatory reason" for the firing. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The reason articulated by Banales was that plaintiff lacked the necessary typing skills to perform the job.

Plaintiff now must prove by a preponderance of the evidence that the reason offered by defendant was not the actual reason for dismissal, but simply a pretext for discrimination. Plaintiff presented a variety of evidence designed to demonstrate the pretextual nature of defendant's proffered reason for the termination. First, plaintiff elicited testimony from Banales that he was a superior typist to Zubia. Furthermore, Banales admitted that Zubia had much less seniority, was less cooperative, and had less experience handling all the various jobs of the department than Martinez. Record on Appeal, vol. 2 at 123-24. Furthermore, the evidence demonstrates that Banales had little empirical evidence of plaintiff's bad typing. He did not give Martinez a typing test and did not consult with Martinez's supervisor about his abilities in this regard. ²

The court below entered judgment for plaintiff after finding that

not only has Plaintiff proved that Defendant had little, if any, empirical evidence from which to conclude that Plaintiff's typing was inadequate, but he also proved that a retained employee had typing skills worse than those of Plaintiff. Under these circumstances, Plaintiff has shown that his sex "more likely" motivated the Defendant in discharging Plaintiff. [Texas Department of Community Affairs v.] Burdine, 450 U.S. at 256, 101 S.Ct. [1089] at 1095 . He also has shown that his sex was a "determining factor" in his discharge.

Record on Appeal, vol. 1 at 22-23.

III

Defendant took this appeal primarily to challenge the trial court's finding of pretext. The court, in defendant's estimation, made this finding only because it confused the plaintiff's duty to prove a causal link between discrimination and discharge with plaintiff's burden of persuasion. In this regard, defendant alleges error in the failure to require proof that an impermissible factor was the "but for" cause of the dismissal. This requirement allegedly is the only possible way to prove the intentional discrimination necessary to support a finding of pretext.

Fortunately, the recent Supreme Court opinion in United States Postal Service Board of Governors v. Aikens, --- U.S. ----, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), speaks directly to this issue. After discussing the evidentiary burdens that order the presentation of the case, the Court points out that the ultimate question in a Title VII case is whether the defendant intentionally discriminated against the plaintiff. The Court then proceeds to discuss how that question is answered:

On the state of the record at the close of the evidence, the District Court in this case should have proceeded to this specific question directly, just as district courts decide disputed questions of fact in other civil litigation. As we stated in Burdine:

"The plaintiff retains the burden of persuasion. [H]e may succeed in this either directly by persuading the court that a...