Mitchell v. Baldrige

• Decision Date: 05 April 1985
• Docket Number: No. 84-5135,84-5135
• Citation: 759 F.2d 80,245 U.S. App. D.C. 60
• Parties: 37 Fair Empl.Prac.Cas. 689, 36 Empl. Prac. Dec. P 35,109, 245 U.S.App.D.C. 60, 1 Fed.R.Serv.3d 1554 Wellington MITCHELL, Appellant, v. Malcolm BALDRIGE, Secretary of Commerce.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 80

759 F.2d 80

37 Fair Empl.Prac.Cas. 689,

36 Empl. Prac. Dec. P 35,109, 245 U.S.App.D.C. 60,

1 Fed.R.Serv.3d 1554

Wellington MITCHELL, Appellant, v. Malcolm BALDRIGE, Secretary of Commerce.

No. 84-5135.

United States Court of Appeals District of Columbia Circuit.

Submitted Jan. 17, 1985.

Decided April 5, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-03020).

Wellington Mitchell, pro se, was on the brief.

Elaine Mittleman, Falls Church, Va., was on the reply brief, for appellant.

Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and John W. Polk, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WRIGHT, GINSBURG, and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

This appeal calls upon us to clarify 1) the elements of a prima facie case of employment discrimination against an individual under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1982) (as amended); and 2) the circumstances under which it is appropriate to dismiss an individual Title VII claim at the close of plaintiff's case pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. ¹

Plaintiff-appellant Wellington Mitchell commenced this Title VII action against his employer, the Department of Commerce, charging both impermissible discrimination in denying him promotions and unlawful retaliation. Mitchell first alleged that his employer had discriminated against him on the basis of race and national origin in the process of filling two higher-level vacancies for which Mitchell had applied. Mitchell also alleged that certain actions taken by his supervisor had been in retaliation for Mitchell's pursuit of a complaint charging discrimination.

At the close of Mitchell's case, the district court granted defendant's Rule 41(b) motion and dismissed all Mitchell's claims. The district court held that Mitchell had failed to make out a prima facie case of discrimination or of reprisal.

With respect to both categories of claims--discrimination and reprisal--we conclude that the district court misapprehended what is required to establish a prima facie case, and therefore held Mitchell to a standard more onerous than governing precedent permits. Based on the essential fact determinations made by the district court, we find that Mitchell did establish prima facie cases of discrimination and of reprisal.

The establishment of a prima facie Title VII case, however, does not render a plaintiff wholly invulnerable to a Rule 41(b) motion. Despite a plaintiff's satisfaction of the threshold requirement that he or she establish a prima facie case, judgment may be entered against the Title VII claimant at the close of plaintiff's case if: 1) in the course of plaintiff's case defendant put forth a nondiscriminatory reason for the actions at issue; 2) plaintiff had fair notice and opportunity to rebut the purported nondiscriminatory reasons; and 3) plaintiff failed to rebut persuasively.

Examining the record made at trial, we find that all three above-listed conditions for judgment against the plaintiff were satisfied with regard to Mitchell's reprisal claim. Through cross-examination of the plaintiff, the defense brought out plausible nondiscriminatory reasons for the actions Mitchell claimed were reprisals. Plaintiff, as a result of that cross-examination, had notice of the alleged nondiscriminatory reasons. During redirect examination of Mitchell, plaintiff's counsel attempted to show that the alleged nondiscriminatory reasons were disingenuous (pretextual). Thereafter, when the defense moved for judgment in its favor under Rule 41(b), plaintiff did not contend that he could tender any further evidence on the reprisal claim.

With the reprisal claim in this posture, dismissal was not premature. While we point out that the district court erred in stating that Mitchell failed to establish a prima facie case of reprisal, we nonetheless affirm the rejection of that claim because 1) a dispositive defense was presented effectively in the course of plaintiff's case-in-chief, and 2) plaintiff failed to rebut the defense persuasively despite reasonable opportunity to do so.

However, we find that the conditions precedent to a Rule 41(b) dismissal of Mitchell's discrimination claim were not met. As with the reprisal claim, plaintiff did establish a prima facie case of discrimination. In contrast to the unfolding of the reprisal claim, however, the alleged nondiscriminatory reasons for defendant's actions were not brought out during the presentation of plaintiff's evidence; they were raised for the first time by the district judge, on his own initiative, during oral argument on the Rule 41(b) motion. Plaintiff sought to reopen his case at that point, in order to attempt rebuttal of the alleged nondiscriminatory reasons. His request to reopen was denied. The nondiscriminatory reasons thus elicited by the trial judge became the basis for the district court's Rule 41(b) dismissal of Mitchell's discrimination claims.

As to this branch of the case, plaintiff did not receive due notice and a reasonable opportunity to be heard in rebuttal. Rule 41(b) dismissal of a discrimination claim for which a prima facie case has been established is not appropriate until such a rebuttal opportunity has been provided. Because the district court relied on a defense presented after plaintiff completed the presentation of his evidence, and did not give plaintiff a fair chance to respond, we vacate the district court's dismissal of Mitchell's discrimination claim and remand for further proceedings.

I. PRIMA FACIE CASE

As the Supreme Court recently restated, once a Title VII case has been "fully tried on the merits," the question whether the plaintiff has established a prima facie case "is no longer relevant." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983). The High Court has admonished lower courts not to make the inquiry into the ultimate question of fact "even more difficult by applying legal rules which were devised to govern 'the allocation of burdens and order of presentation of proof.' " Id. at 716, 103 S.Ct. at 1482 (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)).

When defendant moves to dismiss a Title VII claim at the close of plaintiff's presentation, however, the requirements for a prima facie case are significant. If those requirements have not been met, the defendant need not present a case; the suit can (and should) be terminated at that point. If, however, a prima facie case has been established, the trial ordinarily will proceed to the defendant's presentation. When a plaintiff who has carried the threshold burden rests, dismissal of the claim is proper only if a nondiscriminatory reason for defendant's actions emerged during plaintiff's case, plaintiff had a full and fair opportunity to rebut defendant's explanation, and plaintiff failed to do so persuasively. ²

In this case, the district court misapprehended the prima facie case requirements and consequently determined, incorrectly, that Mitchell had failed to cross the first threshold in presenting his discrimination and reprisal claims. We here set out the standards that, under currently governing precedent, control the determination whether an individual Title VII plaintiff has made out a prima facie case.

A. Discrimination

The Supreme Court has most recently reiterated the familiar standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in Cooper v. Federal Reserve Bank, --- U.S. ----, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984):

A plaintiff alleging one instance of discrimination establishes a prima facie case justifying an inference of individual racial discrimination by showing that he (1) belongs to a racial minority, (2) applied and was qualified for a vacant position the employer was attempting to fill, (3) was rejected for the position, and (4) after his rejection, the position remained open and the employer continued to seek applicants of the plaintiff's qualifications.

Id. at 2799 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824); see also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 & n. 6, 101 S.Ct. 1089, 1093 & n. 6 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 575, 98 S.Ct. 2943, 2948, 57 L.Ed.2d 957 (1978).

This McDonnell Douglas formulation was not the rod against which the district court measured Mitchell's presentation. McDonnell Douglas and its progeny call upon the Title VII plaintiff to show, in the first instance, only that he was qualified for the position sought. See Lynn v. Regents of the University of California, 656 F.2d 1337, 1344-45 (9th Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 59 (1982); Davis v. Weidner, 596 F.2d 726, 730 (7th Cir.1979); see also Davis v. Califano, 613 F.2d 957, 964-65 (D.C.Cir.1980). Here, however, in ruling on defendant's Rule 41(b) motion, the district court demanded that plaintiff show in the first instance more than mere qualification. The district judge believed it "clear ... in cases alleging discrimination by virtue of failures to promote, that in order to prove a prima facie case of discrimination that the plaintiff must demonstrate that he is or was at least as qualified as the person chosen for the position." Mitchell v. Baldridge, No. 82-3020, transcript at 11 (D.D.C. Dec. 6, 1983) (ruling from the bench) [hereafter cited as Ruling].

The district court drew support for this more stringent burden from language found in a footnote to International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The footnote described the McDonnell Douglas...