Terbovitz v. Fiscal Court of Adair County, Ky.

• Decision Date: 05 August 1987
• Docket Number: No. 86-5814,86-5814
• Citation: 825 F.2d 111
• Parties: 44 Fair Empl.Prac.Cas. 841, 43 Empl. Prac. Dec. P 37,288 Carlyne TERBOVITZ, Plaintiff-Appellee, v. FISCAL COURT OF ADAIR COUNTY, KENTUCKY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 111

825 F.2d 111

44 Fair Empl.Prac.Cas. 841,

43 Empl. Prac. Dec. P 37,288

Carlyne TERBOVITZ, Plaintiff-Appellee, v. FISCAL COURT OF ADAIR COUNTY, KENTUCKY, Defendant-Appellant.

No. 86-5814.

United States Court of Appeals Sixth Circuit.

Argued May 14, 1987.

Decided Aug. 5, 1987.

Frank Hampton Moore, Jr., argued, Cole, Harned and Broderick, Bowling Green, Ky., for defendant-appellant.

Daniel B. Goldberg, Appalachian Research and Defense Fund of Ky., Columbia, Ky., Jennifer B. Coffman, argued, Lexington, Ky., for plaintiff-appellee.

Before JONES and RYAN, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendant Fiscal Court of Adair County, Kentucky ("Fiscal Court"), the governing body of the county, appeals from the district court's judgment that the Fiscal Court refused to hire plaintiff Carlyne Terbovitz because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982). The Fiscal Court argues that the district court erred in finding that the CETA representatives were agents of the Fiscal Court, that the Fiscal Court's asserted nondiscriminatory reason for its failure to hire Terbovitz was pretextual, and that the award of back pay should be computed until the date of judgment. Because we conclude that none of the contested factual findings is clearly erroneous, we affirm.

In 1979, the Fiscal Court operated an ambulance service in Adair County. Although it had contracted with the Lake Cumberland Emergency Medical Services System, Inc. ("LCEMSS") to manage the ambulance service, the Fiscal Court retained the authority to hire ambulance service employees. LCEMSS interviewed job applicants to assure minimum qualifications, but then their applications were presented to the Fiscal Court for its final hiring decision. An additional step in the hiring process was required, however, if the open position was to be initially funded under the federal Comprehensive Employment and Training Act ("CETA"): job applicants were first required to be certified as eligible to receive CETA funds. CETA representatives Ralph Snead and his subordinate Pat Long Scott, who were not Adair County employees, were stationed at the Adair County Courthouse to facilitate the certification process. Only applicants certified as CETA eligible by Snead or Scott were interviewed by LCEMSS. The Fiscal Court, however, always had the final say as to which applicant would be hired.

Carlyne Terbovitz desired one of the six emergency medical technician ("EMT") positions that opened with the ambulance service in August, 1979. Because five of the six positions were to be CETA funded, ¹ Terbovitz sought certification from CETA representative Scott. Scott told Terbovitz that she was ineligible to receive CETA funds, however, because her husband was already receiving CETA funds as an EMT for the ambulance service. Scott cited the CETA antinepotism regulation, which states that a person is ineligible to receive CETA funds "if a member of that person's immediate family is engaged in an administrative capacity for that recipient." 20 C.F.R. Sec. 676.66 (1986). Not satisfied with this explanation, Terbovitz contacted the Kentucky CETA headquarters and was told that the antinepotism regulation precluded her eligibility only if her husband was an administrator of the CETA program. Since her husband was not an administrator, Terbovitz informed CETA representative Scott that she was in fact eligible to receive CETA funds. According to Terbovitz's testimony, Scott then permitted her to fill out an application, but warned her that the county would not hire a female EMT.

One week later, Terbovitz returned to check the status of her application, but was told that it had been "lost." She completed another application and served copies of it on Ralph Snead, the head CETA representative; LCEMSS; Earl Cundiff, the manager of the ambulance service; and the Adair County Judge-Executive, who is the county's chief officer. Terbovitz testified that she was again informed by both Ralph Snead and Earl Cundiff that a female EMT would not be hired.

In the end, Terbovitz was not hired. She was not certified as eligible to receive CETA funds, and her application never came before the Fiscal Court for its final hiring decision. All six EMT positions were filled by men. Terbovitz subsequently brought this suit, alleging that the Fiscal Court refused to hire her because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982).

At trial, Terbovitz presented direct evidence through her own testimony that both of the CETA representatives and Earl Cundiff told her that the county would not hire a female EMT. Although the Fiscal Court apparently contested whether these statements were in fact made, its primary defense was that any discriminatory actions taken by the CETA representatives were not attributable to the Fiscal Court since the CETA representatives were not employees of the Fiscal Court. The Fiscal Court also argued to the trial court that Terbovitz would not have been hired in any event, because the CETA representatives had held a "good faith belief" that she was ineligible under CETA by virtue of her husband's employment.

The district court, after a bench trial, analyzed this case under the familiar three-part framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Initially, the court held that Terbovitz established a prima facie case of sex discrimination. ² Although the district court recognized that the Fiscal Court itself had never actually considered and rejected Terbovitz's application, the court nonetheless concluded that the CETA representatives' rejection of Terbovitz's application was attributable to the Fiscal Court because the CETA representatives were acting as agents of the Fiscal Court. The court further concluded that the Fiscal Court's asserted nondiscriminatory justification--that the CETA representatives held a "good faith belief" that Terbovitz was ineligible to receive CETA funds--was pretextual. In finding pretext, the court explicitly credited Terbovitz's testimony that the two CETA representatives and Earl Cundiff had told her that the county would not hire a female EMT. Accordingly, the district court found that Terbovitz satisfied her ultimate burden of proving that the Fiscal Court had intentionally discriminated against her. See Tye v. Board of Educ. of the Polaris Joint Vocational School Dist., 811 F.2d 315, 317-18 (6th Cir.1987); Mills v. Ford Motor Co., 800 F.2d 635, 637-38 (6th Cir.1986); Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 374-75 (6th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 3298, 92 L.Ed.2d 712 (1986). The court awarded Terbovitz back pay from 1979 until the date of the court's judgment in 1985, attorney's fees, expenses, and costs.

Preliminarily, we note that the parties have continued on appeal to argue this case under the McDonnell Douglas evidentiary framework. The McDonnell Douglas formula proceeds under the assumption that a single motive explains the employer's decision to take an employment action adverse to the plaintiff. See Haskins v. United States Dep't of the Army, 808 F.2d 1192, 1197 (6th Cir.1987); Bibbs v. Block, 778 F.2d 1318, 1320-21 (8th Cir.1985) (en banc). The shifting burdens of McDonnell Douglas are designed to determine which motive--the alleged unlawful discrimination or the employer's asserted nondiscriminatory justification--is the "true" reason for the employer's adverse employment action. See Haskins, 808 F.2d at 1197; Bibbs, 778 F.2d at 1320-21. The plaintiff at all times retains the burden of proving that the discriminatory motivation was more likely than not the "true" reason for the employer's decision. See Haskins, 808 F.2d at 1197; Jackson, 743 F.2d at 375.

The McDonnell Douglas formula is inapplicable, however, to cases in which the Title VII plaintiff presents credible, direct evidence of discriminatory animus. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985); Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (6th Cir.1985). As this court stated in Blalock, "Direct evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of defendant's discriminatory intent." Id. Direct evidence of discrimination, if credited by the fact finder, ³ removes the case from McDonnell Douglas because the plaintiff no longer needs the inference of discrimination that arises from the prima facie case. Upon crediting the plaintiff's direct evidence, the district court finds facts requiring the conclusion that unlawful discrimination was at least a "motivating factor" for the employer's actions. See id. at 707-10. The existence of unlawful discrimination is patent, and if the employer does not propose an alternative explanation for its actions, Title VII liability will automatically follow.

If the employer does assert an alternative justification for its employment action, however, it will be arguing, either explicitly or by implication, that although discriminatory motivation may have entered into its employment decision, the same decision would have been made regardless of the discrimination. At this point, the case becomes a "dual motive" or "mixed motive" case, and the crucial issue becomes one of causation. See Haskins, 808 F.2d at 1197. However, because discrimination has already been established by the plaintiff's direct evidence, the employer must do more than merely "articulate" its nondiscriminatory justification as required under McDonnell Douglas. See Blalock, 775 F.2d at 710. In Blalock, we adopted the causation standard of Mt....