Young v. City of Houston, Tex.

• Decision Date: 20 July 1990
• Docket Number: No. 89-2587,89-2587
• Citation: 906 F.2d 177
• Parties: 53 Fair Empl.Prac.Cas. 760, 54 Empl. Prac. Dec. P 40,130, 17 Fed.R.Serv.3d 789 J. Bryant YOUNG, Plaintiff-Appellant, v. The CITY OF HOUSTON, TEXAS, The Civil Service Commission of the City of Houston, Kathryn J. Whitmire, Individually and in her official capacity as Mayor of the City of Houston, Lee Elliott Brown, Individually and in her official capacity as Director of Affirmative Action of the City of Houston, Douglas E. Hamel and Doris Rodriguez, in their official capacities as members of the Civil Service Commission of the City of Houston, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 177

906 F.2d 177

53 Fair Empl.Prac.Cas. 760,

54 Empl. Prac. Dec. P 40,130, 17 Fed.R.Serv.3d 789

J. Bryant YOUNG, Plaintiff-Appellant, v. The CITY OF HOUSTON, TEXAS, The Civil Service Commission of the City of Houston, Kathryn J. Whitmire, Individually and in her official capacity as Mayor of the City of Houston Lee Elliott Brown, Individually and in her official capacity as Director of Affirmative Action of the City of Houston Douglas E. Hamel and Doris Rodriguez, in their official capacities as members of the Civil Service Commission of the City of Houston, Defendants-Appellees.

No. 89-2587.

United States Court of Appeals Fifth Circuit.

July 20, 1990.

Gregg M. Rosenberg, Houston, Tex., for plaintiff-appellant.

A.L. Dent, III, Paula A. Johnson, Fulbright & Jaworski, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GARZA, HIGGINBOTHAM and DUHE, Circuit Judges.

GARZA, Circuit Judge:

The district court dismissed fired employee's race, sex and age discrimination actions at the close of employee's evidence at trial. Because we find that the employee was entitled to a jury determination on his claim of age discrimination, we REVERSE and REMAND in part and AFFIRM in part.

FACTS

Bryant Young, a white man, worked for the City of Houston as an Equal Opportunity specialist, and in 1981 became Section Chief in the Contract Compliance Program. In 1984, Lee Brown, a Black woman, became his boss when the Affirmative Action and Contract Compliance departments were reorganized and transferred to the mayor's office. Because Young was repeatedly out of the office for long stretches of time without explanation, slept frequently at his desk, and shirked direct requests from his supervisors, Brown remarked that she didn't want any "white tokens" in her department who weren't pulling their weight. She also referred to Young and the only other white man in the office as "white faggots." Young testified further that whites were treated differently than non-whites in Brown's office.

Though Young had previously had "above standard" job reviews, he began now to get written reprimands, and says that Brown told him to resign or she would "fill his file with so much paper he would never get a job." He was ultimately suspended indefinitely, and saw that suspension upheld by the civil service commission. Young testified that, when finally terminated, he was replaced by a Black man under 40; the City claims he was replaced by a white man over 40. Young was 55 years old.

Young sued in federal court, alleging race, sex, and age discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 1981, and the Age Discrimination in Employment Act ("ADEA"). ¹ At the close of Young's case, the court dismissed his sex discrimination claim and directed verdicts for the City on the race and age discrimination claims because Young had failed to make out a prima facie case. ² This appeal followed.

DISCUSSION

1. Sex Discrimination

The court below dismissed Young's Title VII sex discrimination claim, in part because he had not raised the claim with the Equal Employment Opportunity Commission ("EEOC"), a condition precedent to any Title VII suit. The scope of inquiry of a court hearing in a Title VII action "is limited to the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir.1970). The scope of inquiry is not, however, limited to the exact charge brought to the EEOC. Id. Young alleged only race and age discrimination with the EEOC, and there is no evidence that the EEOC considered sex discrimination.

Young argues that the City waived any complaint on this point by signing a pre-trial order which stipulated that all jurisdictional prerequisites had been met. While parties to a suit may not stipulate away jurisdiction questions, there may not be a question here. A failure of the EEOC prerequisite does not rob a court of jurisdiction. Henderson v. United States Veterans Admin., 790 F.2d 436, 440 (5th Cir.1986); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir.1981) (en banc ). So, as the City concedes, the district court's finding that there was no jurisdiction was "technically incorrect." But the court below did not stop at jurisdiction. Rather, it went on to deal with the merits of the claim.

The court stated that "there is no evidence that [Young] has been treated any differently than any of the other employees," and found that "there is no evidence as a result of [Young] being a man that somebody took something away from him...." Indeed, Young's counsel conceded that he would "understand if the court rules [against Young] with regards to the sex portion of it." So, the court found that "the evidence is insufficient to make a prima facie case in that regard and the court is going to dismiss" the sex discrimination claim. Because the court there dealt with the merits of the sex discrimination claim, and its findings are not clearly erroneous, we affirm the dismissal of the sex discrimination claim.

2. Race Discrimination

A. Prima Facie Case

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment." 42 U.S.C. Sec. 2000e-2(a)(1). A Title VII plaintiff has the burden of making a prima facie showing that:

1. he belongs to a protected class;

2. he was qualified to do his job;

3. despite his qualifications, his employment situation was adversely affected;

4. his position was filled by someone outside that protected class.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once he has made out this case, discrimination is presumed and the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the adverse job action. The court here held that Young never made out his prima facie case, and so the burden never shifted over to the City.

Young had, further, produced no evidence of disparate treatment because of race. Ramiro Romo, Young's co-worker, testified that Brown would laugh and talk more with the Blacks in the office than with the whites. But the court correctly found that laughing in the office has no bearing on terms and conditions of employment, and is not evidence of disparate treatment.

B. Direct Evidence

Young points out that, because he introduced direct evidence of discrimination, he need not meet the McDonnell Douglas test, but the burden should shift directly over to the City. Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523, 533 (1985). He argues that Brown referring to him as a "white token" and a "white faggot" constitutes direct evidence of race discrimination sufficient to bypass McDonnell Douglas. If those remarks do constitute direct evidence of discrimination, then the burden should shift to the City to show a legitimate, non-discriminatory reason for firing Young.

It is difficult to determine whether racial remarks, taken alone, can constitute direct evidence of discrimination. This court has implied that calling an employee a "nigger" would be direct evidence of race discrimination. Kendall v. Block, 821 F.2d 1142 (5th Cir.1987). But the Eleventh Circuit has held that calling older employees "little old ladies," "old farts," "old bastards," and "old crows" was circumstantial, not direct, evidence of discrimination. Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988). We need not decide today whether Brown's "white token" remark would fall under Kendall or Castle.

The district court found that, assuming no more witnesses were called, the City had articulated non-pretextual, non-discriminatory reasons for firing Young: he was gone often from the office, slept at his desk, violated office procedure, and shirked direct requests from his supervisors. So, whether or not Young had made the burden of proof shift by introducing direct evidence, the City met that burden.

C. Racist Animus

Young also argues that Brown's comments show a racist animus, and for that reason McDonnell Douglas should not apply. He relies on Walsdorf v. Board of Commissioners, 857 F.2d 1047 (5th Cir.1988), which gave Title VII relief to a woman who was not promoted because of her gender. The supervisor said about the plaintiff: "ain't no bitch going to get this job." He also testified that "women should remain at home 'to make the beds and cook the food and, you know, do the things that's necessary.' " Given his blatant sexism, the court found that his discriminatory animus implicated Title VII. But the evidence in this case simply does not rise to Walsdorf 's level. Young did not prove a racist animus sufficient to bypass McDonnell Douglas.

D. Weighing the Evidence

There is some dispute as to whether the court granted an involuntary dismissal under Fed.R.Civ.Pro. 41(b) or a directed verdict under Fed.R.Civ.Pro. 50(a) on this issue. It seems the City moved for a Rule 41(b) dismissal, but the court stated that it would "instruct a directed verdict." If this is a Rule 41(b) dismissal, then the court is free to make credibility determinations and weigh evidence; if it is a Rule 50(a) directed verdict, then all credibility choices should be resolved in favor of Young, the non-movant.

Young argues that the court impermissibly resolved internal conflicts in his evidence and passed on the credibility of his witnesses in what was a Rule 50(a) directed verdict. He cites no instance of the court's passing on credibility, but quotes part of the ruling from the bench: "... we're talking about an internal conflict within your evidence, which is a law...