Wells v. Gotfredson Motor Co., Inc.

• Decision Date: 09 June 1983
• Docket Number: No. 82-1885,82-1885
• Citation: 709 F.2d 493
• Parties: 32 Fair Empl.Prac.Cas. 177, 31 Empl. Prac. Dec. P 33,464, 32 Empl. Prac. Dec. P 33,681 Jackie WELLS, Appellant, v. GOTFREDSON MOTOR CO., INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 493

709 F.2d 493

32 Fair Empl.Prac.Cas. 177,

31 Empl. Prac. Dec. P 33,464,

32 Empl. Prac. Dec. P 33,681

Jackie WELLS, Appellant, v. GOTFREDSON MOTOR CO., INC., Appellee.

No. 82-1885.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 16, 1983.

Decided June 2, 1983.

Rehearing and Rehearing en banc Denied June 9, 1983.

James S. Watson, III, McHenry & Watson, Jill Nagy, Lincoln, Neb., for appellant.

Richard H. Williams, Ryan & Williams, P.C., Lincoln, Neb., for appellee.

Before LAY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.

ROSS, Circuit Judge.

Appellant Jackie Wells brought suit against appellee, Gotfredson Motor Co., Inc., (Gotfredson) alleging that Gotfredson had engaged in sexually discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Following a bench trial, the district court found that Wells did not make out a prima facie case of discrimination and also failed to carry her burden of persuasion that Gotfredson acted in a discriminatory manner. Accordingly, judgment was entered in favor of Gotfredson. Wells filed a motion for a new trial which the court denied in a memorandum opinion further explaining its earlier findings of fact and conclusions of law. On appeal, we affirm.

Wells was hired by Gotfredson in April of 1974 as a "service writer" in the service department of its car dealership. Wells secured this position through an informal hiring procedure in which she talked to the service supervisor, Jerry Greiner, and was offered the job based upon their oral discussion. During Wells' term of employment, she was warned ten times to stop her "visitation" at the front office because it took her away from her duties in the service department. At least once, the general manager, Farrell Eastin, talked to Wells about this problem in his office with the owner of the company present.

In the spring of 1976, Wells told Bob Stratman, the sales manager, that she was interested in securing a sales position in the future. Stratman indicated that he was not opposed to such a transfer and if an opening occurred in the department, he would discuss it with her. In April of 1976, one of the salespersons notified Stratman that he would be leaving in May. Wells contacted Stratman and indicated that she wished to apply for the open sales position. Stratman stated that he would discuss the matter with the president of the company. However, the president was on vacation at that time, so Stratman approached Eastin about hiring Wells for the sales position. Eastin's reply to Stratman was "absolutely not." Eastin testified that his primary motive for denying the request was a concern about Wells' "visitation problem" with the front office. Eastin felt that offering Wells a sales position would aggravate the problem because she would be stationed on the sales floor which is in close proximity to the front office.

Stratman did not immediately tell Wells that Eastin had refused to hire her for the sales position. Wells resigned from her service position in June of 1976, because she believed it would better her chances of being hired for the sales position. When Stratman failed to call Wells, she phoned him about a week after her resignation. Stratman told Wells that a final decision had not yet been reached. Several weeks later Wells again called Stratman and was informed that the job had been filled by a man. Stratman told Wells that a man could better handle the sales position. Stratman testified that he felt a man would be better because of the physical labor required in the job.

On appeal, Wells alleges that the district court erred in finding: 1) that she failed to establish a prima facie case of sex discrimination under the rationale of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); and 2) that she failed to demonstrate proof sufficient to show that Gotfredson's action was motivated in substantial part by sexually discriminatory reasons. We find that the district court erred in holding that Wells did not make out a prima facie case of sex discrimination; however, we agree that Wells failed to demonstrate by a preponderance of the evidence that she was not hired because of her sex. We accordingly affirm.

The Supreme Court set out the most recent clarification of the order and allocation of proof applicable to a disparate treatment case in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981), where it stated:

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 93 S.Ct. at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825.

The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.

In this case, the district court found that Wells had not made out a prima facie case of disparate treatment. We disagree. A prima facie case of disparate treatment under McDonnell, supra, requires proof that:

1. The plaintiff is a member of a protected class.

2. The plaintiff applied for and was qualified for the position in question.

3. The plaintiff was not hired.

4. After rejecting the plaintiff, the defendant continued to seek a person to fill the position.

The record clearly establishes that Wells proved that these four factors existed in this case. Thus, we find that Wells did make out a prima facie case of sex discrimination. However, we cannot say that the district court's finding that Wells failed to carry the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against her was clearly erroneous. See Fed.R.Civ.P. 52(a).

The Supreme Court in United States Postal Service Board of Governors v. Aikens, --- U.S. ----, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) recently dealt with a situation similar to the one now before us. The district court in Aikens improperly required the plaintiff to submit direct evidence of discrimination and erroneously focused on the question of the existence of a prima facie case after the defendant advanced evidence at trial of a legitimate, nondiscriminatory reason. Id. at ----, 103 S.Ct. at 1482. The Supreme Court remanded that case because it could not be certain whether these legal errors influenced the district court's factual findings in favor of the defendant. Id. In the present case, while the district court's initial opinion left some uncertainty as to whether the court gave weight to Wells' prima facie evidence, the court's memorandum following her motion for a new trial left little doubt that the court recognized that an inference of discrimination could be drawn from that evidence. ¹ The court nevertheless reiterated that the preponderance of the evidence in this case supported the defendant's contention that it acted for a legitimate, nondiscriminatory reason. Specifically, the court stated:

After listening to the testimony of both Stratman and Eastin and carefully observing their demeanor, I conclude that the preponderance of the evidence does not support the inference urged by the plaintiff, but supports the conclusion that the failure to place the plaintiff in a sales position was for a legitimate, nondiscriminatory business reason.

This ultimate factual finding was made giving Wells' evidence, including the evidence she introduced to support her prima facie case, all the "weight and credence it deserves," United States Postal Service Board of Governors v. Aikens, supra, ---- U.S. at ---- n. 3, 103 S.Ct. at 1481 n. 3. Therefore, the legal error made in this case did not influence the district court's ultimate factual finding and a remand is unnecessary.

LAY, Chief Judge, dissenting.

I respectfully dissent. Once we hold that the district court erred in failing to acknowledge the plaintiff's proof of a prima facie case of discrimination the proper procedure is to remand to the district court for a de novo review of the record. In failing to recognize that Wells had established a prima facie case, the district court obviously found that she had failed to prove any inference of discriminatory intent, and thus the court failed to give due credit to the evidence she presented in an effort to meet her ultimate burden. Thus, it is incongruous to affirm the court's finding that "Wells failed to carry the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against her" when we also find that the court erred in giving no weight whatsoever to Wells' initial proof of discrimination.

The majority is correct when it notes in this case, as the Supreme Court noted in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), that the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 253, 101 S.Ct. at 1093. However, the Court in Burdine went on to note that the "McDonnell Douglas [Corp. v. Green, 411 U.S....