Vuyanich v. Republic Nat. Bank of Dallas

Citation521 F. Supp. 656
Decision Date04 August 1981
Docket NumberNo. CA3-6982-G,CA3-7949-G.,CA3-6982-G
CourtU.S. District Court — Northern District of Texas

JoAnn Peters, Anderson & Peters, Dallas, Tex., for Vuyanich.

Linda N. Coffee, Palmer, Palmer & Coffee, Dallas, Tex., for Johnson.

Richard L. Arnold, Tobolowsky & Schlinger, Dallas, Tex., for intervenor Fenton.

Wayne S. Bishop, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D. C., for defendant.



In its opinion filed October 22, 1980,1 this Court found phase one liability under Title VII for certain of defendant's practices. Thereafter, the Court invited counsels' comment regarding the recent decision of the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ("Burdine"). The Bank has responded with a request for reconsideration of all but one liability finding. The accused findings are:

1. Liability for black applicants for non-exempt positions, 1969-1973;
2. Liability for female applicants for exempt positions before December 31, 1974;
3. Liability for all blacks from 1973 to date;
Initial Placement and Promotion
4. Liability for non-exempt blacks and females for all years;
5. Liability for exempt blacks from 1973 to date of trial.

I turn to the applicability of Burdine to these findings.


The language and holding of Burdine must be read against the backdrop of Supreme Court Title VII precedent in order properly to assess its impact on this case. The risk of misinterpretation and misapplication is great where decisional context is ignored. At the outset, then, Burdine's place in the hierarchy of Supreme Court Title VII decisions must be established.

Burdine represents a refinement and clarification of the Court's holding in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ("McDonnell Douglas"). In McDonnell Douglas, the Court considered "... the order and allocation of proof in a private, non-class action challenging employment discrimination." Id. at 800, 93 S.Ct. at 1823. (emphasis added). It first set out the elements required to establish a prima facie case in a single-plaintiff, treatment suit.2 The Court next explained that if a prima facie case is made out, "the burden then must shift to the employer to articulate some legitimate, non-discriminatory reason for the employee's rejection." Id. at 802, 93 S.Ct. at 1824. In so holding, the Court rejected the Court of Appeals' decision that "subjective," non job-related criteria for rejection carried "little weight" in rebutting a prima facie case. Id. at 803,3 93 S.Ct. at 1824-1825. If the employer articulates a non-discriminatory reason for the decision, the Court continued, the complainant must then be given a full and fair opportunity to prove that the stated reason was in fact pretext, a cover-up for a racially motivated decision. Id. at 804-805, 93 S.Ct. at 1825-1826.

Anticipating the risk of future confusion, the Court took pains to limit its holding in McDonnell Douglas. First, in delineating the elements of a prima facie case, the Court cautioned in footnote 13:

The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from a complainant is not necessarily applicable in every respect to differing factual situations. Id. at 802, 93 S.Ct. at 1824.

Second, the Court took care to emphasize that where employment practices are challenged in a disparate impact, class action suit such as Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), "proof" of job-relation would still be required to rebut a prima facie case. In footnote 14, the Court stated:

We note that the issue of what may properly be used to test qualifications for employment is not present in this case. Where employers have instituted employment tests and qualifications with an exclusionary effect on minority applicants, such requirements must be "shown" to bear a demonstrable relationship to successful performance of the jobs for which they are used, Griggs v. Duke Power Co., 401 U.S. 424, 431 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Castro v. Beecher, 459 F.2d 725 (CA 1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA 2 1972). Id. at 802, 93 S.Ct. at 1824.

The McDonnell Douglas decision thus left undisturbed the allocation and burden of proof established in Griggs for disparate impact, class action cases.

Three years later, in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) ("Teamsters"), the Court expressly rejected the argument that McDonnell Douglas set forth the only proof sequence for a prima facie case under Title VII. "Our decision in that case," the Court stressed in Teamsters, "did not purport to create an inflexible formulation." Id. at 358, 97 S.Ct. at 1866. The Court further explained:

The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act. Id. at 358, 97 S.Ct. at 1866.

Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) was cited as an application of the broad principle of McDonnell Douglas in the context of a class action. There, the Court noted, demonstration by plaintiffs of a discriminatory hiring pattern-or-practice was sufficient "... to infer that individual hiring decisions were made in pursuit of the discriminatory policy and to require the employer to come forth with evidence dispelling that inference." Id. at 359, 97 S.Ct. at 1867.

The Court then described the application of McDonnell Douglas to pattern-or-practice suits where the Government proves discrimination by statistical means, and where proof of discriminatory motive is not required. See generally, id. at 335, n.15, 97 S.Ct. at 1854, n.15. In terms equally applicable to class plaintiffs in the type of across-the-board suit at issue in this case, the Court stated:

At the initial, "liability" stage of a pattern-or-practice suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government's proof is either inaccurate or insignificant. Id. at 360, 97 S.Ct. at 1867.

By footnote, the Court further distinguished the type of rebuttal proof required of an employer in a class action case from that required in the type of single-plaintiff treatment case before the Court in McDonnell Douglas v. Green:

The employer's defense must, of course, be designed to meet the prima facie case of the Government. We do not mean to suggest that there are any particular limits on the type of evidence an employer may use. The point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking. While a pattern might be demonstrated by examining the discrete decisions of which it is composed, the Government's suits have more commonly involved proof of the expected result of a regularly followed discriminatory policy. In such cases the employer's burden is to provide a non-discriminatory explanation for the apparently discriminatory result. Id. at 360, n.46, 97 S.Ct. at 1867, n.46.

Assuming the inference of discrimination is not dispelled at the phase one liability stage, the Court observed, the employer will have an additional opportunity at the relief phase of the trial "... to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons," albeit bearing a burden of proof, rather than mere production. Id. at 362, and n.50, 97 S.Ct. at 1868, and n.50.

In Burdine, the Court returned to the question of burden of proof. It made clear that the burden of persuasion always remains with the plaintiff; that the prima facie case only shifts the burden of producing evidence. Id. 450 U.S. at 255, 101 S.Ct. at 1094, 67 L.Ed.2d at 216.

As in McDonnell Douglas, the fact base was a single-plaintiff treatment case. The Court explained that if a defendant stands silent in the face of the prima facie case described in McDonnell Douglas, the trial court may enter judgment based upon plaintiff's proof. At the same time, the defendant's evidence need only raise a fact issue; it does not have the burden of persuading the court that its proof actually will carry the day. To rebut the McDonnell Douglas four-part prima facie case, the employer "need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Id. 450 U.S. at 257, 101 S.Ct. at 1096, 67 L.Ed.2d at 218. While the defendant need only raise a question of fact, however, "... the explanation of its legitimate reasons must be clear and reasonably specific." Id. If the defendant carries its burden of production, the Court continued, the burden then shifts to the complainant to prove that the non-discriminatory reasons were pretextual, either by showing that discrimination more likely motivated the employer, or by showing that the employer's proffered explanation is unworthy of credence. Id. 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d at 217.

Once again, the Court endeavored to limit the context of its holding. In footnote 15, it reiterated:

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