North Carolina Dept. of Correction v. Gibson

• Decision Date: 05 April 1983
• Docket Number: No. 495A82,495A82
• Citation: 301 S.E.2d 78,308 N.C. 131
• Court: North Carolina Supreme Court
• Parties: NORTH CAROLINA DEPARTMENT OF CORRECTION v. Earl GIBSON.

Page 78

301 S.E.2d 78

308 N.C. 131

NORTH CAROLINA DEPARTMENT OF CORRECTION v. Earl GIBSON.

No. 495A82.

Supreme Court of North Carolina.

April 5, 1983.

Rufus L. Edmisten, Atty. Gen. by Richard L. Kucharski, Asst. Atty. Gen., Raleigh, for defendant-appellant Dept. of Correction.

Phillip Wright, Lumbee River Legal Services, Inc., Pembroke, for plaintiff-appellee.

BRANCH, Chief Justice.

Plaintiff instituted this action pursuant to G.S. 126-36, which provides:

Any State employee or former State employee who has reason to believe that employment, promotion, training, or transfer was denied him or that demotion, layoff or termination of employment was forced upon him in retaliation for opposition to alleged discrimination or because of his age, sex, race, color, national origin, religion, creed, political affiliation, or physical disability except where specific age, sex or physical requirements constitute a bona fide occupational qualification necessary to proper and efficient administration, shall have the right to appeal directly to the State Personnel Commission.

The above statute relates only to State employees and is consistent with the legislative policy announced in G.S. 143-422.2 as follows:

It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general.

This case is one of first impression in this jurisdiction and we look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.

The United States Supreme Court considered a similar question in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). There, the claimant had been employed by McDonnell Douglas, but was laid off during a general reduction of the work force. During the period following his layoff, he participated in a stall-in against McDonnell Douglas to protest what he and others believed to be discriminatory practices by the company. His conduct was illegal and unprotected under the Civil Rights Act. Later, when the company resumed hiring, the claimant made application but was denied employment. He brought an action under Title VII asserting that he was denied employment because he was black and because of his legitimate civil rights activities. McDonnell Douglas maintained that his application was denied because of his involvement in the illegal stall-in. The Court established the following standards to be applied in Title VII cases:

(1) The claimant carries the initial burden of establishing a prima facie case of discrimination.

(2) The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant's rejection.

(3) If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. The evidentiary standard set forth in McDonnell Douglas has also been applied to cases in which an employee has been discharged. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976).

The burden of establishing a prima facie case of discrimination is not onerous. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). It may be established in various ways. For example, a prima facie case of discrimination may be made out by showing that (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group. Coleman v. Braniff Airways, Inc., 664 F.2d 1282 (5th Cir.1982); Marks v. Prattco, Inc., 607 F.2d 1153 (5th Cir.1979).

A prima facie case of discrimination may also be made out by showing the discharge of a black employee and the retention of a white employee under apparently similar circumstances. Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir.1977). Brown v. A.J. Gerrard Mfg. Co., 643 F.2d 273 (5th Cir.1981). See also McDonald v. Santa Fe Trail Transp. Co., supra, (white employees were discharged while black employees were retained under similar circumstances).

When a prima facie case is established, a presumption arises that the employer unlawfully discriminated against the employee. Texas Dept. of Community Affairs v. Burdine, supra. The showing of a prima facie case is not equivalent to a finding of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Rather, it is proof of actions taken by the employer from which a court may infer discriminatory intent or design because experience has proven that in the absence of an explanation, it is more likely than not that the employer's actions were based upon discriminatory considerations. Id.

Once a prima facie case of discrimination is established, the employer has the burden of producing evidence to rebut the presumption of discrimination raised by the prima facie case. McDonnell Douglas Corp. v. Green, supra; Texas Dept. of Community Affairs v. Burdine, supra. Some of the earlier federal cases held that the employer had the burden of proving by a preponderance of the evidence his legitimate nondiscriminatory reasons for his actions. Whiteside v. Gill, 580 F.2d 134 (5th Cir.1978); Silberhorn v. General Iron Works Co., 584 F.2d 970 (10th Cir.1978); Turner v. Texas Instruments, Inc., supra. The United States Supreme Court settled this question, however, in Texas Dept. of Community Affairs v. Burdine, supra. In that case the Court held that after a plaintiff proves a prima facie case of discrimination, the employer's burden is satisfied if he simply explains what he has done or produces evidence of legitimate nondiscriminatory reasons. The employer is not required to prove that its action was actually motivated by the proffered reasons for it is sufficient if the evidence raises a genuine issue of fact as to whether the claimant is a victim of intentional discrimination. Id.

It is thus clear that "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, 67 L.Ed.2d at 215. We are of the opinion that footnote 8 in Texas Dept. of Community Affairs v. Burdine clearly states the rationale of this holding. We quote:

This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law. "The word 'presumption' properly used refers only to a device for allocating the production burden." F. James & G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed. 1977) (footnote omitted). See Fed.Rule Evid. 301. See generally 9 J. Wigmore, Evidence § 2491 (3d ed. 1940). Cf. J. Maguire, Evidence, Common Sense and Common Law 185-186 (1947). Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.

Id. at 255, 101 S.Ct. at 1094, 67 L.Ed.2d at 216 n. 8.

To rebut the presumption of discrimination, the employer must clearly explain by admissible evidence, the nondiscriminatory reasons for the employee's rejection or discharge. Id. The explanation must be legally sufficient to support a judgment for the employer. Id. If the employer is able to meet this requirement, the prima facie case, and the attendant presumption giving rise thereto, is successfully rebutted. Id.

When the employer explains the nondiscriminatory reasons for his action, the plaintiff is then given the opportunity to show that the employer's stated reasons are in fact a pretext for intentional discrimination. We note parenthetically that the plaintiff may rely on evidence offered to establish his prima facie case to carry his burden of proving pretext. Texas Dept. of Community Affairs v. Burdine, supra.

We believe it helpful to note some of the factors which courts have considered as relevant evidence of pretext. They are:

(1) Evidence that white employees involved in acts against the employer of comparable seriousness were retained or rehired,

(2) Evidence of the employer's treatment of the employee during his term of employment,

(3) Evidence of the employer's response to the employee's legitimate civil rights activities, and

(4) Evidence of the employer's general policy and practice with respect to minority employees.

See McDonnell Douglas Corp. v. Green, supra.

The trier of fact is not at liberty to review the soundness or reasonableness of an employer's business judgment when it considers whether alleged disparate treatment is a pretext for discrimination.

In Loeb v. Textron, 600 F.2d 1003 (1st Cir.1979), the Court stated:

While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason must be reasonably...