Murray v. Thistledown Racing Club, Inc.

• Decision Date: 12 August 1985
• Docket Number: No. 84-3075,84-3075
• Citation: 770 F.2d 63
• Parties: 38 Fair Empl.Prac.Cas. 1065, 37 Empl. Prac. Dec. P 35,447 Kansas E. MURRAY, Plaintiff-Appellant, v. THISTLEDOWN RACING CLUB, INC.; Randall Racing Club, Inc.; Summit Racing Club, Inc.; Cranwood Racing Club, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 63

770 F.2d 63

38 Fair Empl.Prac.Cas. 1065,

37 Empl. Prac. Dec. P 35,447

Kansas E. MURRAY, Plaintiff-Appellant, v. THISTLEDOWN RACING CLUB, INC.; Randall Racing Club, Inc. Summit Racing Club, Inc.; Cranwood Racing Club Inc., Defendants-Appellees.

No. 84-3075.

United States Court of Appeals Sixth Circuit.

Aug. 12, 1985.

Charles R. Laurie, Laurie, Hull, Ryan and Doyle, Cleveland, Ohio, for plaintiff-appellant.

John B. Lewis, Cleveland, Ohio, for defendants-appellees.

Before KEITH and JONES, Circuit Judges, and NEWBLATT ^*, District Judge.

KEITH, Circuit Judge.

The plaintiff, Kansas E. Murray, appeals from an order granting summary judgment entered by the United States District Court for the Northern District of Ohio on December 20, 1983. Murray, a white female, instituted this "reverse discrimination" action against her former employers, the Thistledown Racing Club, Inc., Randall Racing Club, Inc., Summit Racing Club, Inc. and Cranwood Racing Club, Inc. (defendants) in February of 1982. Murray claimed she was constructively discharged from her job because of her race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. ¹ and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981. ² On appeal, Murray contends that summary judgment was improper because there were disputed issues of material fact. We do not agree. For the reasons set forth below, the judgment of the district court is affirmed.

FACTS

The facts of this case are fully set forth in the district court opinion, Murray v. Thistledown Racing Club, 603 F.Supp. 479 (N.D.Ohio 1983) The relevant and material facts are not disputed. Kansas Murray is a white female who worked as a mutuel clerk for the Racetrack, which conducts horse racing activities at Thistledown Race Track. ("Thistledown"). During the 1979 racing season, Murray accumulated a total of $31,302.00 in shortages. In 1980, she aggregated $29,501.00 in shortages, more than any other mutuel clerk at the track. Just before Murray was to begin work in 1981, the Racetrack insisted that she sign the following statement:

I __________ do hereby acknowledge that __________ of Thistledown management has formally advised me that after having been previously notified and warned of chronic shortages in my position as mutuel clerk, that any further shortages will clearly define incompetence to be so employed; and such shortages will result in my immediate dismissal from Thistledown Race Track.

She refused and has not worked at the Racetrack since. Murray contends that the Racetrack's actions constituted a constructive discharge impermissibly based on race. The Racetrack employs approximately 170 mutuel clerks during the week and about 200 on the weekends. Most of the mutuel clerks are white.

Mutuel clerks are assigned certain positions: seller, cashier, messenger (or "runner") and ticket counter. A seller's duties include taking bets from customers and insuring that the amount of money collected balances with the number of mutuel tickets sold. Cashiers are responsible for cashing winning tickets and balancing the number of tickets cashed with the amount of money paid out by the cashier. A messenger's duties include delivering money to cashiers as needed and taking the cashier's cashed tickets to the ticket room. Ticket counters are responsible for balancing the cashier's count of tickets with the actual number of tickets cashed.

All mutuel clerks are financially responsible for their own proven shortages, according to the terms of the collective bargaining agreement between the Racetrack and mutuel clerks' union (Racing Guild of Ohio, Local No. 304). The Racetrack's rules governing shortages provide in pertinent part:

18. Shortages will be subject for a warning and continued shortages could result in suspension and/or dismissal. Shortages MUST be paid the next day before beginning to work.

Kansas Murray's highest shortages occurred when she was working as a seller, collecting money from the persons placing bets. In the last two months that she spent as a seller during the 1980 season, there were six separate occasions on which Murray had shortages of over $1,000 each. ($1,777 on September 5; $1,810 on September 14; $1,498 on September 19; $1,265 on September 21; $1,050 on September 28; and $1,957 on November 1, 1980). Murray was always able to repay her shortages before beginning work the next day, as required by the Racetrack's rules. However, after her last and highest ever shortage on November 1, 1980 (a Saturday night) Murray told Garvin Wright, Assistant General Manager and Director of Mutuels at Thistledown, that she would be unable to pay the $1,900 shortage in time to work the following day and that she would have to travel to Indiana to get the money. She asked if Wright would allow her to work Sunday without first repaying her shortage. Wright denied her request and Murray did not pay her shortage until the following Thursday or Friday. She was not permitted to work during the interim (Deposition of Kansas Murray at pp. 47-50).

When she next reported to work, Murray was not returned to the seller's window, but was instead assigned a non-money handling job as a runner. She finished the season as a runner, and did not incur further shortages.

At the beginning of the 1981 season, Murray reported for work and was returned to a money-handling position. Midway through her first day on the job Instead, she filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") and the Ohio Civil Rights Commission ("OCRC"), alleging that she was discriminated against on the basis of race because the Racetrack asked her to sign the statement, but did not impose the same requirement on four black mutuel clerks who also had shortages. Both commissions found against Murray and the EEOC issued a Right to Sue letter. Murray then filed the instant suit under Title VII and 42 U.S.C. Sec. 1981, alleging the same cause of action.

Murray was called to Wright's office and told that, because of her history of chronic shortages, she would have to sign a statement acknowledging that she had been warned about her shortage problem and that she recognized that she could be terminated for future shortages. Murray was not terminated; she was merely given a choice between complying with Racetrack policy or forfeiting her right to continue working. Murray chose not to sign the statement and left the track. She has not returned to work at the Racetrack.

Murray contends that the Racetrack treated her more harshly than the four black mutuel clerks because the Racetrack feared that the black clerks would claim they were targets of discrimination.

The Racetrack contends that it presented Murray with the shortage statement because she had a continuing history of large shortages, far greater than those of the four black mutuel clerks. Murray's shortages were the worst that Wright, Director of Mutuel Clerks, had seen in his thirty-five years at the track.

The four black clerks to which Murray compares herself were also removed from money handling positions during the holiday months of November and December of 1980, but there the similarity ends. The four black clerks' individual shortages for the year totaled $9,021; $9,190; $11,265; and $16,888, respectively: Kansas Murray's shortages totalled $29,501.

603 F.Supp. at 481-82 (footnotes omitted). In considering the defendants' motion for summary judgment, the district court found that Murray had failed to establish (1) a prima facie case of "reverse discrimination" under Title VII, (2) genuine issues of material fact, and (3) a prima facie case under Section 1981. The court thereupon granted the defendants' motion for summary judgment and dismissed the action with prejudice.

DISCUSSION

Our review of an order granting summary judgment focuses on whether genuine issues of material fact preclude dismissal of the case. Fitzke v. Shappell, 468 F.2d 1072, 1077 (6th Cir.1972). See Fed.R.Civ.P. 56(c). The determination of summary judgment in this case requires evaluation of the initial proof submitted for Murray's "reverse discrimination", disparate treatment claim under Title VII and the related proof of intentional discrimination required under Section 1981.

I. TITLE VII

A. Prima Facie Case of Reverse Discrimination

The general standard for establishing a prima facie case in disparate treatment cases under Title VII is set forth in the seminal racial discrimination in hiring case, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973):

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). As the Court noted, this standard provides an analytical framework which should be modified to accommodate different employment discrimination contexts. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Thus, courts have modified the McDonnell Douglas standard to address disparate treatment cases involving all discrimination prohibited by the Act in promotion, firing, compensation or other conditions of employment.

Accordingly, the district court in the case at bar adopted a McDonnell Douglas standard modified to address "reverse discrimination" claims under the Act:

In reverse discrimination cases, the first prong of the McDonnell Douglas standard has been interpreted to allow a majority plaintiff to establish a prima facie case of intentionally disparate treatment when ...