Robbins v. White-Wilson Medical Clinic, Inc.

• Decision Date: 12 November 1981
• Docket Number: WHITE-WILSON,No. 80-5442,80-5442
• Citation: 660 F.2d 1064
• Parties: 27 Fair Empl.Prac.Cas. 225, 27 Empl. Prac. Dec. P 32,209 Delores J. ROBBINS, Plaintiff-Appellant, v.MEDICAL CLINIC, INC., Defendant-Appellee. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1064

660 F.2d 1064

27 Fair Empl.Prac.Cas. 225,

27 Empl. Prac. Dec. P 32,209

Delores J. ROBBINS, Plaintiff-Appellant, v. WHITE-WILSON MEDICAL CLINIC, INC., Defendant-Appellee.

No. 80-5442.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 12, 1981.

Joseph L. Hammons, Pensacola, Fla., for plaintiff-appellant.

Peter W. Zinober, Tampa, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before HILL, Circuit Judge, SMITH ^**, Judge, and HENDERSON, Circuit Judge.

JAMES C. HILL, Circuit Judge:

Plaintiff, a black female, brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and 42 U.S.C. § 1981, alleging that the defendant clinic denied her employment on the basis of race. The district court granted plaintiff's motion for summary judgment to the extent that plaintiff had established the necessary elements of a prima facie case of employment discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Following a non-jury trial, however, the judge concluded that the defendant had established a legitimate, nondiscriminatory reason for refusing to hire plaintiff and that plaintiff had failed to prove by a preponderance of the evidence that the articulated reason was a pretext for discrimination. Accordingly, the district court entered judgment for defendant. We now reverse.

I. Facts

Early in January 1978, Mrs. Robbins submitted an application for employment to the White-Wilson Medical Clinic, a privately owned medical clinic located in Fort Walton Beach, Florida that provides out-patient services to residents of northwest Florida and southern Alabama. Prior to the filing of Mrs. Robbins' E.E.O.C. charge, the only black employees at the clinic worked in the janitorial and housekeeping positions. At the time Mrs. Robbins applied for a position at the clinic there were no positions open; however, a job as record room clerk came open at the end of the month. Fourteen applicants, including Mrs. Robbins, were selected by Marilyn Pollard, the record room supervisor, for personal interviews. On February 3, 1978 Mrs. Robbins was personally interviewed for the record room clerk position by Mrs. Pollard. At trial Mrs. Pollard testified that when Mrs. Robbins appeared for the interview she was surprised to learn that she was black because in five years of interviewing she had never interviewed a black applicant. At the conclusion of the interview Mrs. Robbins was advised that there were other applicants to interview and that she would be called later and told whether she had been selected. When she received no word for several days, Mrs. Robbins telephoned the clinic. Mrs. Pollard told her that another applicant had been selected and stated that Mrs. Robbins had not been chosen because of her age. Shortly afterward, Mrs. Robbins called the clinic administrator who denied that the clinic had discriminated against her because of her age (which was thirty-seven). Mrs. Robbins then spoke with Mrs. Pollard again and accused her of discrimination. At this point Mrs. Pollard informed Mrs. Robbins that she had not been selected because of her personality. After this second telephone conversation, Mrs. Pollard made a notation on the margin of Mrs. Robbins' application: "Has a bad attitude has called and asked many questions. She is a black girl. Could cause trouble. I don't need this one."

Mrs. Robbins filed a timely charge of discrimination against the clinic with the E.E.O.C. The E.E.O.C. failed to conclude its investigation within 180 days of filing; authorization was requested and received to file a civil suit in federal court. The instant action was filed on February 7, 1979.

II. Standard of Review

The parties dispute the standard under which this court must review the trial court's finding of no discrimination, with defendant urging application of the clearly erroneous standard and plaintiff arguing for the exercise of independent review. Because a finding of discrimination vel non is an ultimate fact, we must make an independent determination of the allegations of discrimination. Joshi v. Florida State University 646 F.2d 981, 986 (5th Cir. 1981); Thompson v. Leland Police Department, 633 F.2d 1111, 1112 (5th Cir. 1980). As we do so, however, we are bound by the trial court's credibility determinations and findings of subsidiary facts which are not themselves clearly erroneous, examining only whether there are sufficient subsidiary facts to support the district court's conclusion on the ultimate fact. Joshi v. Florida State University, 646 F.2d 981, 986 (5th Cir. 1981); Phillips v. Joint Legislative Committee on Performance and Expenditure Review of the State of Mississippi, 637 F.2d 1014 (5th Cir. 1981); Thompson v. Leland Police Department, 633 F.2d 1111, 1112 (5th Cir. 1980); East v. Romine, 518 F.2d 332, 338-39 (5th Cir. 1975); Causey v. Ford Motor Co., 516 F.2d 416, 420-21 (5th Cir. 1975).

III. Burdens of Plaintiff and Defendant

The trial court having determined that defendant had met its burden of showing a nondiscriminatory reason and that plaintiff had not met her burden of proving pretext, we turn to the Supreme Court's pronouncements on the parties' respective burdens in a Title VII discriminatory treatment case. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court established that initially the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. ¹ Upon the plaintiff's success in proving a prima facie case, the defendant assumes the burden of articulating "some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 93 S.Ct. at 1824. If the defendant carries this burden, the plaintiff then has the opportunity to prove by a preponderance of the evidence that the reasons offered are in fact a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825.

Recently the Supreme Court expanded on the nature of the burden that shifts to the defendant once the plaintiff has made a prima facie case. The decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), altered the law in this circuit by placing on the defendant only a burden of producing a nondiscriminatory justification, not a burden of persuasion by a preponderance of the evidence, as this court had required. See Ray v. Freeman, 626 F.2d 439, 443 (5th Cir. 1980).

The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons.... It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant.

450 U.S. at ----, 101 S.Ct. at 1094 (footnotes omitted) (citation omitted). While lessening the burden to one of production, however, the Court also made clear that the sufficiency of the defendant's explanation must be evaluated by the extent to which it affords the plaintiff, through the clarity and specificity of the proffered reasons, a full and fair opportunity to demonstrate pretext. Id. at ----, 101 S.Ct. at 1095-96. ² At trial the defendant attempted to show that two job qualifications were relevant to the position of record room clerk: minimal typing skills and a personality well suited to cooperative work relations with co-workers in a small working environment. As to the first, neither plaintiff nor defendant disputes that both Mrs. Robbins and the applicant chosen possessed clerical skills exceeding the level required for the job. It is the second qualification a pleasant personality which defendant offered as its legitimate, nondiscriminatory reason for Mrs. Robbins' rejection. For the purposes of this case, we will assume the legitimacy of this factor as a job qualification. Before determining its legal sufficiency as a rebuttal to a prima facie case of discrimination, however, we must note the subjective nature not only of this qualification but also of the job selection process in this case.

The evidence shows, and the district court found, that the entire evaluation process was restricted to the job interview. Although the record room supervisor only made recommendations to the clinic's administrator on the basis of the supervisor's interviews of the applicants, the recommendations were routinely followed. No guidelines had been established for the interviews, nor had the administrator ever sat in on a full interview. Because of the interviewer's dominant influence in the selection process, therefore, the interviewer's impression of the applicant was crucial.

We have frequently noted the dangers involved in this sort of evaluation. "(S)ubjective selection processes involving white supervisors provide a ready mechanism for racial discrimination." Johnson v. Uncle Ben's Inc., 628 F.2d 419, 426 (5th Cir. 1980). Accord, Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1385 (5th Cir. 1978), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 345 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978); Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972). The Supreme Court's requirement that "the defendant's explanation of its legitimate reasons ... be clear and reasonably specific" provides the plaintiff with some protection against the...