Miller v. Texas State Bd. of Barber Examiners

• Decision Date: 17 April 1980
• Docket Number: No. 77-1770,77-1770
• Citation: Miller v. Texas State Bd. of Barber Examiners, 615 F.2d 650 (5th Cir. 1980)
• Parties: 22 Fair Empl.Prac.Cas. 1128, 22 Empl. Prac. Dec. P 30,839 James F. MILLER, Plaintiff-Appellant, v. TEXAS STATE BOARD OF BARBER EXAMINERS, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 650

615 F.2d 650

22 Fair Empl.Prac.Cas. 1128,

22 Empl. Prac. Dec. P 30,839

James F. MILLER, Plaintiff-Appellant, v. TEXAS STATE BOARD OF BARBER EXAMINERS, Defendants-Appellees.

No. 77-1770.

United States Court of Appeals Fifth Circuit.

April 17, 1980.

James R. (Ron) Weddington, Austin, Tex., for plaintiff-appellant.

Robert J. Provan, Asst. Atty. Gen., John L. Hill, Atty. Gen., Douglas B. Owen, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

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

Before GODBOLD, SIMPSON and TJOFLAT, Circuit Judges.

SIMPSON, Circuit Judge:

Appellant-employee, James Miller, a black male, was discharged by his employer, the appellee, the Texas State Board of Barber Examiners (the Board), for failing to report to work. Miller brought the present action in the district court alleging that his discharge and prior treatment in job assignments violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The district court correctly held that Miller is not entitled to any relief for damage resulting from the discharge because he was fired for a valid nondiscriminatory reason. However, the district court may have erred in holding that the differential treatment accorded Miller in job assignments was justified by the business necessity doctrine because it is questionable whether the doctrine applies to situations involving overt racial discrimination. Even if the doctrine was misapplied, the evidence establishes that Miller suffered no injury and is entitled to no relief.

FACTS

The Board is an agency of the state of Texas responsible for licensing and inspecting that state's barber shops and barber colleges. The Board hired Miller as an undercover investigator in 1965. He continued in that capacity for four years, investigating both white and black barber shops. In 1969 Miller met with his supervisor, who explained that the white inspectors refused to inspect black barber shops because of fears of physical violence. Since all the inspectors were then white the black shops were not being inspected. When asked if he was willing to inspect the black shops, Miller responded affirmatively and was promoted to the position of inspector.

Miller remained in that position until he was discharged in October 1973. He was not assigned a specific geographical area as were white inspectors. Instead his inspections were generally restricted to black barber shops, although he occasionally inspected Mexican-American shops, and, less frequently, white shops. During his employment, Miller never complained of the assignment.

In 1973 the Board became dissatisfied with Miller's work primarily because he was making unauthorized inspections outside his normal geographical area of operation. Inspectors were entitled to reimbursement for travel expense and per diem when inspecting outside their normal areas. Unauthorized inspections were placing a strain on the Board's limited budget. The record also reveals that the Board was dissatisfied with the quality of Miller's inspections. For these reasons, the Board decided to transfer him from the Dallas-Ft. Worth area to Houston to give him a chance to rehabilitate himself. Miller's supervisor conveyed the Board's decision to him and instructed him to begin working in Houston. Miller neither followed these instructions nor informed the Board of his intention not to follow them. When queried by his supervisor, Miller replied only that he had no comment to make. He was discharged by the Board shortly thereafter.

In November of 1973, and at Miller's request, the Board held a hearing concerning his allegations of discrimination. After considering testimony and argument of counsel, the Board refused to reinstate him. Miller exhausted available administrative remedies and then filed the present action in the district court.

THE DISCHARGE

Appellant attacks the validity of his discharge on two grounds. First, he argues that he was fired because of his race, a discharge based on a forbidden criterion. 42 U.S.C. § 2000e-2(a)(1). However, the district judge found that Miller was fired because he refused to go to Houston, as instructed by his supervisor, not because he is black. This finding of fact is supported by substantial evidence and must be upheld. Bolton v. Murray Envelope Corp., 493 F.2d 191, 194 (5th Cir. 1974). Title VII explicitly provides that courts may not order reinstatement of backpay if the employee is discharged for a valid nondiscriminatory reason:

No order of the court shall require . . . the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual . . . was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title.

42 U.S.C. § 2000e-5(g). Miller's refusal to go to work in Houston provided a valid nondiscriminatory reason for his discharge.

The second prong of Miller's attack is based on the doctrine of constructive discharge. This doctrine, borrowed from the field of labor law, recognizes a Title VII cause of action for wrongful discharge when an employer deliberately creates a discriminatory environment which literally forces an employee to involuntarily resign. Calcote v. Texas Educational Foundation, Inc., 578 F.2d 95, 97 (5th Cir. 1978); Young v. Southwestern Savings & Loan Assn., 509 F.2d 140, 144 (5th Cir. 1975). Miller argues that the differential treatment he received in job assignments caused him to refuse to go to Houston; the refusal led to his discharge; and therefore he was constructively discharged. These facts do not fit the normal constructive discharge case because Miller never resigned; he was fired. Furthermore, the record does not support his contentions. For years Miller generally inspected only black barber shops without complaining, raising objections only after he was fired for a valid nondiscriminatory reason. The most likely inference to be gleaned from the record is that Miller only objected to moving to Houston, not to inspecting only black shops. His argument that the assignment forced him to refuse to go to Houston is meritless. Miller was discharged for a valid reason and is not entitled to relief for any injury resulting from the discharge. We now consider whether he is entitled to any relief because of the assignment to inspect only black shops.

THE ASSIGNMENT TO INSPECT BLACK BARBER SHOPS

The Board undoubtedly treated Miller differently because of his race by assigning him generally to inspect only black shops. The district court may have erred by holding the assignment was justified by a valid business necessity: the white inspectors' refusal to inspect the black shops because of fears of physical violence.

Title VII permits discrimination in hiring and employment in certain circumstances:

Notwithstanding any other provision of this subchapter, . . . it shall not be an unlawful employment practice for an employer to hire and employ . . . (an employee) on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . .

42 U.S.C. § 2000e-2(e)(1). This provision of Title VII permits intentional or unintentional discrimination where religion, sex or national origin is a bona fide occupational qualification. Race is conspicuously absent from the exception; therefore the bare statute could lead one to conclude that there is no exception for either intentional or unintentional racial discrimination. The Supreme Court partially faced this issue in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Duke Power Company, the employer, required employees to have a high school education or pass a standardized general intelligence test as a prerequisite to employment or transfer to other jobs within the company. These requirements impacted more heavily upon blacks than whites. The Court found the testing and education requirements to be prohibited by Title VII where the standards were not shown to be significantly related to job performance. The Court indicated which business situations may permit racial discrimination: "The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." Id. at 431, 91 S.Ct. at 853. The business necessity doctrine has evolved from this statement. Although authority on the precise point is "scarce if not nonexistent," 3 A. Larson, Employment Discrimination § 72.10 (1979), lower courts, including the Fifth Circuit, have generally assumed that the business necessity doctrine excepts only discriminatory practices which "are fair in form but discriminatory in operation", Griggs v. Duke Power Co., supra, but not overt, intentional racial discrimination. E. g., Garcia v. Gloor, 609 F.2d 156 (5th Cir. 1980) (dictum); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 244 (5th Cir. 1974), rehearing denied, 494 F.2d 1296, cert. denied 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (stating in dictum that the doctrine excepts only "those few employment practices, which are nonintentionally discriminatory or neutral, but perpetuate the consequences of past discrimination because of their overriding business necessity"). See Annot., What Constitutes "Business Necessity" Justifying Employment Practice Prima Facie Discriminatory Under Title VII of the Civil Rights Act of 1964, 36 A.L.R. Fed. 9 (1978) for a full discussion of the many facets of the doctrine. In summary, the parallel business...