McCluney v. Jos. Schlitz Brewing Co.

• Decision Date: 27 February 1984
• Docket Number: 82-3059,Nos. 82-2978,s. 82-2978
• Citation: 728 F.2d 924
• Parties: 34 Fair Empl.Prac.Cas. 273, 33 Empl. Prac. Dec. P 34,186, 15 Fed. R. Evid. Serv. 205 Forrest F. McCLUNEY, Plaintiff-Appellant, Cross-Appellee, v. JOS. SCHLITZ BREWING CO., Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 924

728 F.2d 924

34 Fair Empl.Prac.Cas. 273,

33 Empl. Prac. Dec. P 34,186,

15 Fed. R. Evid. Serv. 205

Forrest F. McCLUNEY, Plaintiff-Appellant, Cross-Appellee, v. JOS. SCHLITZ BREWING CO., Defendant-Appellee, Cross-Appellant.

Nos. 82-2978, 82-3059.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1983.

Decided Feb. 27, 1984.

J. Michael Vaughan, Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke, P.C., Kansas City, Mo., for plaintiff-appellant, cross-appellee.

Paul V. Lucke, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, Wis., for defendant-appellee, cross-appellant.

Before POSNER and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Plaintiff-Appellant, Forrest F. McCluney, sued Defendant-Appellee, Jos. Schlitz Brewing Co., alleging retaliatory discharge in violation of 42 U.S.C. Sec. 2000e-3(a) (1976). McCluney claimed that he was terminated from his employment because he expressed opposition to Schlitz' allegedly discriminatory employment practices. In an unpublished decision and order, the United States District Court for the Eastern District of Wisconsin held that McCluney had failed to show that it was his position regarding discriminatory practices which brought about his discharge. The district court found that McCluney was dismissed because of his inability to accept a company decision. On appeal, McCluney raises five issues:

I. Whether the district court erred in holding that McCluney failed to make a prima facie case for retaliatory discharge;

II. Whether the district court placed the proper burden of proof upon McCluney;

III. Whether the district court improperly found that McCluney failed to make a convincing showing that his position regarding the discriminatory nature of the transfer decision caused his discharge;

IV. Whether the district court erroneously dismissed McCluney's claim for wrongful discharge; and

V. Whether the district court erred in excluding evidence regarding McCluney's complaints about other practices of Schlitz and in excluding the initial determination of the Wisconsin Department of Industry, Labor and Human Relations?

Schlitz cross-appeals claiming that McCluney's action is barred by res judicata. For the reasons stated below, this Court affirms the decision of the district court.

Facts

In May 1975, Schlitz promoted McCluney from his position of plant manager at their Winston-Salem, North Carolina brewery to that of vice president of operations at Schlitz' corporate headquarters in Milwaukee, Wisconsin. McCluney moved to Milwaukee immediately and upon his arrival there, began requesting that his secretary at the Winston-Salem brewery, Rinne, be transferred to Milwaukee. Schlitz denied McCluney's request because it had provided McCluney with a competent secretary in Milwaukee and had a company policy against transferring secretaries between locations.

McCluney, not easily dissuaded, continued his pursuit of the transfer of his former secretary through the summer of 1975. On August 22, the executive vice president and general manager of Schlitz met with McCluney and told him that the decision not to transfer the former secretary was final. McCluney threatened to quit unless Schlitz complied with his request for the transfer. Schlitz, undaunted by McCluney's brinkmanship, discharged McCluney on August 25.

McCluney initiated several actions against Schlitz and, in the instant action, claims that Schlitz dismissed him in retaliation for his opposition to a sexually discriminatory company transfer policy in violation of 42 U.S.C. Sec. 2000e-3(a) (1976). Schlitz contends that it discharged McCluney because of his threat to resign, his unwillingness to accept a top-level decision regarding the transfer of Rinne, his obstinance in pursuing the matter after a number of discussions and a question of whether McCluney had properly set his priorities with respect to his job.

Issues

I. Whether the district court erred in holding that McCluney failed to make a prima facie case for retaliatory discharge?

The trying of Title VII actions involves a three-step procedure.

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the defendant fails to persuade the fact-finder to dismiss the action for lack of a prima facie case at the close of the plaintiff's evidence, and if the defendant goes forward and offers evidence of the reason for the plaintiff's dismissal, the fact-finder must decide the ultimate question of discrimination vel non. See United States Postal Service Board of Governors v. Aikens, --- U.S. ----, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). "In short, the district court must decide which party's explanation of the employer's motivation it believes." Aikens, 103 S.Ct. at 1482.

The order of proof in Title VII cases need not be rigidly compartmentalized. The district court's findings should "be sufficiently clear and explicit so that the findings can be examined in the light of the evidence in the record and applicable legal principles." Sumner v. San Diego Urban League, Inc., 681 F.2d 1140, 1142 (9th Cir.1982) citing Worthy v. United States Steel Corp., 616 F.2d 698, 701 (3d Cir.1980). Where the analysis articulated by the district court does not follow the "paradigm of the shifting burdens" outlined in Burdine, 450 U.S. at 248, 101 S.Ct. at 1089, a reviewing court may uphold the district court's decision if the result in the case would be the same. See, e.g., Sherkow v. State of Wisconsin, Department of Public Instruction, 630 F.2d 498 (7th Cir.1980).

In the present case, the district court, after hearing two and one-half days of testimony which is reflected in a record consisting of 665 pages and involved direct evidence by both parties as well as rebuttal evidence by McCluney, found that "the plaintiff has not made a convincing showing that it was his position regarding the discriminatory nature of the transfer decision which brought about his discharge." McCluney v. Jos. Schlitz Brewing Co., No. 79-C-647, slip op. at 7 (D.Wis. Nov. 9, 1982). The district court clearly stated that the evidence was "insufficient to support a finding that Mr. McCluney had actually challenged as discriminatory the defendant's transfer policies," id. at 5, and the evidence did not "establish the reasonableness of Mr. McCluney's beliefs on that topic [discriminatory transfer policies]," id. at 6.

Since both sides proffered evidence in the instant case and since "[t]he district court ha[d] before it all the evidence it need[ed] to decide whether 'the defendant intentionally discriminated against the plaintiff,' " Aikens, 103 S.Ct. at 1482, citing Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-1094, questions regarding the establishment of a prima facie case are irrelevant. See Aikens, 103 S.Ct. at 1482 ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.") Therefore, we will not consider whether the district court erred with respect to the establishment of a prima facie case of retaliatory discharge.

II. Whether the district court placed the proper burden of proof upon McCluney?

"It is the plaintiff's burden under Title VII to demonstrate discrimination by the preponderance of the evidence." Clark v. Chrysler Corporation, 673 F.2d 921, 926 (7th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982), citing Furnco Construction Corporation v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); see also Sonia v. Ozinga Bros., Inc., 704 F.2d 990, 997 (7th Cir.1983); Sherkow, 630 F.2d at 502.

At the outset of its opinion, the district court stated that "[i]n order to prevail on his claim, McCluney must prove to the court, by a preponderance of the evidence, that...." McCluney, slip op. at 1. The district court next focused on whether McCluney ever mentioned his alleged belief that Schlitz' transfer policy was discriminatory or whether McCluney's belief about the discriminatory nature of that policy was reasonable, and whether a causal connection existed between his position regarding the discriminatory nature of the transfer decision and his discharge. The district court decided all three questions in Schlitz' favor after a review of the evidence.

The district court concluded that "the plaintiff has not made a 'convincing' showing that it was his position regarding the discriminatory nature of the transfer decision which brought about his discharge." McCluney, slip op. at 7 (emphasis added). McCluney concentrates on the word "convincing" and contends that too high a burden of proof was placed upon him. After a thorough review of the record and in light of the burden of proof set out by the district court in the opening paragraphs of its opinion, this Court finds that the district court properly determined that there was insufficient evidence to find a retaliatory discharge by a preponderance of the evidence. This Court assumes that the use of the word "convincing" by the district court was a matter of poor choice and not one of ignorance as to the proper burden of proof.

III. Whether the district court improperly found that...