Thurman v. Yellow Freight Systems, Inc.

• Decision Date: 26 July 1996
• Docket Number: 95-5064,Nos. 94-6109,s. 94-6109
• Citation: 90 F.3d 1160
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 657, 19 A.D.D. 1223 Darrell D. THURMAN, Plaintiff-Appellee, Cross-Appellant, v. YELLOW FREIGHT SYSTEMS, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1160

90 F.3d 1160

72 Fair Empl.Prac.Cas. (BNA) 657, 19 A.D.D. 1223

Darrell D. THURMAN, Plaintiff-Appellee Cross-Appellant, v. YELLOW FREIGHT SYSTEMS, INC., Defendant-Appellant, Cross-Appellee.

Nos. 94-6109, 95-5064.

United States Court of Appeals Sixth Circuit.

Argued April 11, 1996.

Decided July 26, 1996.

Richard J. Ebbinghouse (argued and briefed), Gordon, Silberman, Wiggins & Childs, Birmingham, AL, for Plaintiff-Appellee, Cross-Appellant.

Jeff Weintraub (briefed), J. Gregory Grisham (argued and briefed), Weintraub, Robinson, Weintraub, Stock, Bennett, Ettinghoff & Grisham, Memphis, TN, for Defendant-Appellant, Cross-Appellee.

Before: SUHRHEINRICH and SILER, Circuit Judges; EDMUNDS, District Judge. ^*

EDMUNDS, District Judge.

Plaintiff brought this case against his former employer, claiming race discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. After a bench trial, the district court found that Yellow Freight Systems, Inc. discriminated against Darrell Thurman by failing to hire him as a full time employee. The district court awarded back pay, costs, and attorney fees, and denied Thurman's requests for instatement, compensatory and punitive damages, prejudgment interest, and front pay. Defendant appealed and Plaintiff cross-appealed.

I.

Plaintiff, Darrell Thurman, is a black man who was employed by Defendant, Yellow Freight Systems, Inc., a "less than a truckload" common carrier based in Memphis, Tennessee. Thurman began working as a casual employee for Yellow Freight on September 20, 1988. He sought to become a regular full time employee. To qualify for consideration as a regular employee, a casual employee needed 1) a commercial driver's license; 2) two years experience driving tractor-trailers; and 3) passing results on a driver's test, a physical exam, and a drug test. In considering casual employees for full time work, Yellow Freight used no objective criteria regarding work performance. When Yellow Freight needed to hire another regular employee, Larry Rock, the General Operations Manager, would ask the shift managers and dock supervisors ¹ to recommend one of the casuals. Recommendations were made based on an employee's "hustle" or speed, his attitude, and his skill in properly stacking freight. Previous work experience and longevity with the company were also factors.

In late 1988, Larry Rock asked Thurman if he was interested in a full time job. Thurman responded that he was, and gave Rock a copy of his state driving record. His record contained no negative information. In December 1988, Thurman passed Yellow Freight's drivers test, and on January 4 1989, he passed the physical exam. Yellow Freight gave Thurman a "New Hire Kit" containing a new W-4 form and a credit union application. After he received these forms, Thurman thought he was a regular employee. However, Yellow Freight did not hire him. Instead, in January 1989, Yellow Freight hired five white employees.

As a result of Yellow Freight's failure to hire him as a regular employee, Thurman filed an EEOC claim and later this lawsuit, claiming race discrimination. Yellow Freight contended it did not hire Thurman because Thurman was an average or poor worker, and the whites hired were better workers. Thurman presented contradictory evidence that his performance was superior to the whites the company hired.

Despite Yellow Freight's claim that Thurman's work performance was poor, Yellow Freight used Thurman as a casual for a great number of hours just before it did its January 1989 hiring. When Yellow Freight needed more workers, shift managers attempted to call the best performing casuals first. In the period between September and December 1988, Thurman worked more hours than the average number of hours that white casuals worked.

During discovery and in the pre-trial order, Yellow Freight had indicated it had hired only four white employees. During cross examination of Larry Rock, however, Rock revealed that Yellow Freight in fact had hired five white employees, and the fifth one was Jerry Clay. Yellow Freight hired him on January 8, 1989, and then fired him eight days later due to poor work performance. There was evidence at trial that Yellow Freight had racist hiring practices in the past. Since 1974, Yellow Freight has been bound by a consent decree. The consent decree provides that Yellow Freight must meet a 33% minority hiring goal. Yellow Freight has met this goal in some years, and has failed to meet it in others. In 1986, 46% of Yellow Freight's new hires were minorities, in 1987 only 9% were minorities, and in 1988 only 17%. During 1987 and 1988 a number of other truck lines went out of business, thus there were experienced blacks available for hire in the labor market. ²

In the spring of 1989, Thurman left his employment at Yellow Freight. In August 1990, Thurman went to work for Riggs Trucking Company, for a job substantially similar to his job at Yellow Freight. During his probationary period, he damaged a truck and was fired. From August 1991 to October 1992, Thurman worked for Parts, Inc. During that time, Thurman permanently injured his back.

A bench trial was held and on July 29, 1994, the district court held that Yellow Freight intentionally discriminated against Thurman and that Yellow Freight's proffered reasons for not hiring Thurman were a pretext for discrimination. The court rejected Yellow Freight's after-acquired evidence defense and rejected Yellow Freight's claim that backpay should be tolled due to Thurman's failure to mitigate. The court awarded Thurman backpay in the amount of $95,782.21, reducing the award to account for unemployment income and worker's compensation Thurman had received. The court also awarded costs and attorney fees in the amount of $109,923.61. The court denied Thurman's requests for instatement, compensatory and punitive damages, prejudgment interest, and front pay. The court did not award pension benefits. Defendant appealed and plaintiff cross-appealed.

II.

This court reviews questions of law de novo, Weimer v. Kurz-Kasch, Inc., 773 F.2d 669 (6th Cir.1985), and questions of fact under the clearly erroneous standard. Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The clearly erroneous standard requires this court to give deference to the finder of fact. As the Supreme Court explained: If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

City of Bessemer, 470 U.S. at 573-74, 105 S.Ct. at 1511. Such deference to the trial court is necessary because the trial judge is in the best position to determine credibility of witnesses. Id. at 574-75, 105 S.Ct. at 1511-12.

III.

A. Discrimination

Title VII provides that it is an unlawful employment practice for an employer to discriminate against an individual by failing or refusing to hire him on the basis of race. 42 U.S.C. § 2000e-2(a)(1). In a Title VII action, the plaintiff has the burden of proving a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). A claimant may prove a prima facie case by bringing forth credible, direct evidence of discriminatory intent, Terbovitz v. Fiscal Ct. of Adair Cnty., 825 F.2d 111 (6th Cir.1987), or through circumstantial evidence showing:

1) he is a member of a protected class;

2) he was qualified for the job;

3) he suffered an adverse employment decision; and

4) he was treated differently than similarly situated whites.

Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir.1991); see McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824-25.

Once a plaintiff has met his burden of production and has established a prima facie case of discrimination, the burden of production shifts to the defendant to establish a legitimate, nondiscriminatory reason for the employment decision. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825-26. If the defendant carries this burden, the presumption raised by plaintiff's prima facie case is rebutted. The ultimate burden of persuasion remains with the plaintiff to prove that the employer's reasons were a pretext for discrimination and that the employer intended to discriminate on the basis of race. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). It is at this stage that credibility is assessed. Id. at 508-10, 113 S.Ct. at 2748. A plaintiff can prove discrimination either (1) by showing that a discriminatory reason more likely motivated the employer or (2) by showing that the employer's explanation is unworthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination....

St. Mary's, 509 U.S. at 510-11, 113 S.Ct. at 2749 (emphasis in original).

The parties do not dispute that Thurman presented a prima facie case. However, Yellow Freight contends it rebutted any presumption raised by the prima facie case by proving it had legitimate reasons for failing to hire Thurman: his work performance was poor and the work performance of the whites was better. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (6th Cir.1994) (performance problem...