Edgar L. BURNETT, Plaintiff-Appellant, v. CHICKASAW AREA DEVELOPMENT COMMISSION, Defendant-Appellee , 662 F.2d 1210 ( 1981 )

WEICK, Circuit Judge.

Burnett has appealed to this court from a judgment of the district court in favor of the defendant-appellee Chickasaw Area Development Commission, a private Tennessee corporation not for profit, funded by the federal government dismissing, after a trial on the merits, his complaint alleging violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. The complaint originally had additionally alleged violations of 42 U.S.C. §§ 1981, 1983 and 1985 and sought class action relief. Subsequently, class action certification was denied by the district court and the claims under 42 U.S.C. §§ 1981, 1983 and 1985 were dismissed because they were barred by the Tennessee statute of limitations. Tennessee Code Annotated, § 28-304. The dismissal of these additional claims is not an issue in this appeal.

In essence, Burnett in his complaint charged that the Commission had intentionally and wrongfully discharged him from his position as Emergency Food and Medical Director because of his race (black) and by failing to consider and hire him for the position of Cannery Supervisor and Acting Head Start Director.

In its answer, the Commission denied that it discriminated against Burnett, on account of his race, intentionally or otherwise. It alleged that Burnett’s position as Emergency Food and Medical Director was terminated solely because the federal funding for the program had run out. The Commission further denied that there were other positions available at the time of the termination of his employment for which he was qualified. It alleged that it did offer Burnett a job as cannery operator at a lower salary, but he declined to accept it.

The ease was tried in the district court without a jury before District Judge Robert M. McRae, Jr., who heard the testimony of many witnesses and admitted numerous exhibits into evidence. At the close of plaintiff’s evidence, the Commission moved for dismissal of the complaint for failure of proof which motion was denied by the court as shown by the following colloquy:

The Court: All right, I overrule the motion, I do believe the authorities require the defendant to go forward with the proof.

Mr. Mosier (defendant’s counsel): Thank you, Your Honor.

The Court: I’m not ruling on the final case, but the McDonald (sic) case does set up what is required. (J.A. 152).

This ruling applied McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which holds that after a prima facie case of discrimination has been proved, the defendant is required to go forward with its proof. This the court required the Commission to do.

After hearing and considering all of the evidence and exhibits which in substance are contained in an appendix consisting of 326 pages, the court announced its decision in which it made oral findings of fact and conclusions of law which were copied into the record and are included in the appendix. They were as follows:

THE COURT: All right, the Court will announce its ruling by making an oral Finding of Fact and Conclusion of Law. And the Clerk will enter a judgment based upon these oral findings and conclusions.

The basic facts are not in dispute, such as the Defendant actually came into operation only on January 1, 1972 at which time the Plaintiff, along with other employees who had been employed at the Shiloh Area Development Commission were enrolled as employees of the Defendant.

At that time the Plaintiff was «the Emergency Food Director, at a salary of approximately seven thousand dollars a year. His duties were multiple, and among those duties was the overall administration of the one cannery that had been started under the Shiloh Operation at Milledgeville, and had been opened and operated by Mr. O’Neal Deming since its inception.

The Plaintiff’s other duties included the distribution of seeds, and otherwise trying to administer the funds that were available under his area.

Now, he did not require any particular knowledge about the Cannery, his duties were, as I say, were administrative. He would require some basic training in order to be a Cannery Operator. And he certainly acquired no knowledge that would qualify him to repair those items to any considerable degree.

From the proof I think it is inescapable that the reason he was terminated was that in this bureaucratic distribution of funds the particular funds for his job were not made available after June 30, 1972.

Now, it is unfortunate that the Plaintiff had cast his lot with this jargon and this type of job where titles are used and dependency is made upon the federal money, and it has to be distributed in accordance with a complex set of regulations, and under the direction and supervision of some state and federal regulation experts. Certainly I am not knocking it, that’s the way it has to be when you are dealing with government money. But I do say that the Plaintiff’s job was terminated because the funds were withdrawn.

Now, I further find that the organization at or about the time, or even shortly before he was terminated, that the Defendant organization determined that they would open additional canneries.

I find that the Defendant supervisory personnel undertook to and did hire as the man to be the supervisor of the installation and operation of these canneries Mr. O’Neal Deming, who was the most qualified man to do the job that was needed to be done. Namely, seeing that the people were trained to operate the canners and that the canners were being set up, and they would be maintained at all times by his own training he has received and his own efforts. Of course, he is a white person. And I further find that his job was not advertised, although there was testimony it was custom to do that. I could not find anybody that had seen the ad or actually knew that it was made. However, I don’t think that’s vital to the position of the Defendant.

Now, with regard to the Headstart, the facts are disputed. The Plaintiff did apply for the Headstart position and he was not hired in preference to a black female who became hired. I find that an acting Director of the Headstart Program was appointed without an advertisement. I’m not sure, but I assume from all the notoriety that the Acting Director was white. I don’t know, but I will assume that she was. But in any event, there was no advertisement.

Now, in a ease of this kind a Plaintiff has the burden of proving an intent to deprive him of rights because of his race. Now, I disagree with Mr. Cox’s argument to the extent that disparate treatment can cause this Court to grant the relief. And I am sorry I don't know the name of the series of cases, but the Supreme Court and the Sixth Circuit have spoken to this recently by saying that even though an act of an organization or even a city creates a disparate relationship or treatment, unless it was intended in an unconstitutional manner the Courts should not intercede.

So this Plaintiff has the burden of proving what he claims, and that is, that he was terminated because of his race, or that in some way he was not hired for a job because of his race.

Now, I agree that it was of little help to offer him the Canning Operator job, but I don’t think we get to that because I must conclude that this Plaintiff has not carried the burden of proving that he was terminated because of his race, or he was not hired as Canning Supervisor because of his race, or that he was not hired as the Headstart Director because of his race, or that he was not hired as Acting Director of Headstart because of his race. With regard to the notice, I must conclude that there is no requirement in the Constitution saying that a company must post notices or advertise. Now, this is a policy it would be wise to follow, and really is an excellent policy, because it eliminates this constant suspicion that when you don’t advertise then the boss and the committee get together in private and say let’s just hire ole so and so. If you have it all out in the open reasons have to be stated and you can’t use it as a subterfuge.

Because I have found that the Defendant did the most logical thing, and that was to elevate Mr. Deming to the job of Cannery Supervisor, it isn’t that great. As he continually said, that position isn’t the best in the place, but he does a good job at it, and it was logical. There was no intent not to hire the Plaintiff because he was black in that regard.

It probably is in the record more carefully than I have been shown, but this company or corporation was not one that was lopsided white at the top. The supervisor of the Plaintiff was a black person. Now, I’m taking him at his word that there was a personality conflict, and there can be personality conflicts between two white people, two black people, or a white and a black person. I’m really not putting much emphasis on that. I’m really not putting any emphasis on it, although it does show that Deputy Director is black and the Plaintiff himself was hired as a black person and the statistics show there have always been a representative number of blacks working in the organization.

I imagine on closer examination would indicate more blacks have more lower paying jobs than whites, but in any event I find non-discriminatory treatment or positions.

I can’t help but feel some sympathy for the Plaintiff, who is an educated gentleman, and I agree offering him a Canning Operator job was not very helpful. As a matter of fact, sort of pouring salt on. But in any event I am bound by the principles of law.

If this is a McDonnell Aircraft versus Green case, and I doubt that it is, I find that a prima facie case is made that he is a member of the minority race. The only possible problem you would have would be Mr. Deming, and I think the Defendant Corporation has explained why they hired him for that job. That was not the same kind of job that the Plaintiff had, this was an active working job of setting up these canneries, not being a supervisor where you have a job where you didn’t have to do anything but pick up time sheets, and also be aware and make known to the public the existence of this Cannery and promote it and things of that sort.

I will direct the Clerk to enter a judgment for the Defendant by reference to these findings, and I don’t intend to write them up any more.

Are there any questions from the attorneys about the procedure?

If not, Mrs. LaFon, you may adjourn the court.

In our opinion, the court’s findings of fact are supported by substantial evidence and they are not clearly erroneous. Rule 52 Fed.R.Civ.P. Counsel for appellant contends that the Federal Rules of Civil Procedure are inapplicable in Title VII cases, but we disagree.

There was no substance to Burnett’s claim that he was discharged from his position of Emergency Food and Medical Director because of his race. A number of witnesses, including the Commission’s executive director and the director of personnel testified that federal funds specifically provided therefore were withdrawn and these witnesses were credited by the District Judge, as was his function.

Burnett did not accept the lower grade position as cannery operator, as was his privilege.

The burden of proof was upon Burnett to prove racial discrimination, but this he failed to do as found by the District Judge and we agree. The duties of Burnett in the performance of his position as Emergency Food and Medical Director were largely administrative and he had little knowledge of the actual operations of the cannery and could not do any repair work or establish additional canneries. Burnett had a supervisor who was deputy director and was black. The deputy director did not think much of Burnett’s performance, tardiness, open disobedience and resentfulness.

Burnett claims that he should have been offered the position occupied by O’Neal Deming who had actually operated the single cannery while Burnett was Emergency Food and Medical Director. Deming later became Cannery Supervisor with expanded duties to open and operate new canneries. Burnett contends that the Commission should later have offered the position to him, although he never applied for it. Two witnesses testified he was not the best qualified to perform the work. They were Robert Vinson, Executive Director of the Commission, and Max Brewer, former Executive Director. The District Judge dealt with this matter in his findings of fact and found that Deming “was the most qualified man to do the job that needed to be done.” The Commission was not required to employ anyone who was not well qualified, irrespective of his race.

As to Headstart Director, the Commission employed a black female, Ms. Hay, instead of Burnett. This hardly indicates racial discrimination. When Ms. Hay became ill, the Commission employed Mary Nell Johnson, a white woman, to take Ms. Hay’s position during her illness.

We do not overlook the Supplemental Authorities of Edgar L. Burnett as plaintiff-appellant filed by his counsel in this court on October 6, 1980, in which he states inter alia:

2. Burdine v. Texas Depart, of Community Affairs, 608 F.2d 563 (5th Cir. 1979), cert. granted [447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112] (1980), like the instant case, involved a claim of discrimination under Title VII against a community action agency. Burdine, virtually indistinguishable on the facts and law from the instant case, supports Burnett’s arguments on both issues that he raises in this appeal.

First: Burdine holds that a Title VII claim against a community action agency is governed by Title VII law and not the constitutional standard established in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Burdine, 608 F.2d at 566. See Burnett’s Main Brief, pp. 17-18.

Second: In Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), the Supreme Court refined its holding in Furnco and McDonnell Douglas on defendant’s burden in a disparate treatment case. Sweeney held that defendant’s burden is not to “prove” a legitimate nondiscriminatory motive for its action; its only obligation is to “articulate” or “show” such a basis for its action. Burdine, construing Sweeney, held that “articulating” a legitimate reason involves more than stating fictitious reasons; “legally sufficient proof is needed before the trier of fact can find plaintiff’s proof rebutted.” Burdine, 608 F.2d at 567 (emphasis in the original).

Third: Burdine holds also that Sweeney requires a defendant to prove nondiscriminatory reason by a preponderance of the evidence. 608 F.2d at 567.

Fourth : Burdine holds that in discharge cases involving disparate treatment incident to a reduction in force, the Sweeney articulization [sic] standard is not met by a defendant who relies on an unsustained assertion of “qualifications” and “prior work record.” A defendant must produce evidence “that will allow a true comparison of individuals hired and rejected.” 608 F.2d at 568 (original emphasis). Moreover, reliance upon subjective evaluations and recommendations is also insufficient. Id. See Burnett’s Main Brief, at 23-24.

The only trouble with this argument is that the Supreme Court vacated the judgment of the Fifth Circuit Court of Appeals and remanded in Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the syllabus of which is as follows:

1. Civil Rights

In employment discrimination suit, ultimate burden of persuading trier of fact that defendant intentionally discriminated against plaintiff remains at all times with plaintiff. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

2. Civil Rights

Burden of establishing prima facie case of disparate treatment in employment discrimination suit is not onerous, but plaintiff must prove by preponderance of evidence that she applied for available position, for which she was qualified, but was rejected under circumstances which give rise to inference of unlawful discrimination. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

3. Civil Rights

When plaintiff had proved prima facie case of employment discrimination, defendant bore only burden of producing evidence that legitimate, nondiscriminatory reasons existed for challenged employment action and did not bear burden of persuading court that it was actually motivated by proffered reasons; it was sufficient if defendant’s evidence raised genuine issue of fact as to whether it discriminated against plaintiff. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

4. Civil Rights

To rebut presumption of employment discrimination raised by prima facie case, defendant must clearly set forth, through introduction of admissible evidence, the reasons for plaintiff’s rejection and articulation not admitted into evidence, such as answer to complaint or argument of counsel, will not suffice; explanation provided must be legally sufficient to justify judgment for defendant. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

5. Civil Rights

Title VII did not require employer to hire or promote minority or female applicant whenever that person’s objective qualifications were equal to those of white male applicant. Civil Rights Act of 1964, § 703(j), 42 U.S.C.A. § 2000e-2(j).

6. Civil Rights

Title VII does not demand that employer give preferential treatment to minorities or women, nor does it require employer to restructure his employment practices to maximize number of minorities and women hired. Civil Rights Act of 1964, § 703(j), 42 U.S.C.A. § 2000e-2(j).

7. Civil Rights

Employer has discretion to choose among qualified candidates, provided that decision is not based on unlawful criteria and fact that court may think that employer misjudged qualifications of applicants does not in itself expose him to Title VII liability, although this may be probative of whether employer’s reasons are pretexts for discrimination. Civil Rights Act of 1964, § 703(j), 42 U.S.C.A. § 2000e-2(j).

There was not an iota of evidence offered by Burnett of any intentional discrimination against him or that the employer’s reasons were pretextual.

We are unable to understand the Supplemental Brief filed by Burnett in which he cites the Supreme Court decision in Burdine which reversed the Fifth Circuit decision on which he then relied and he now claims that Burdine supports his contentions. He is wrong.

The judgment of the district court is affirmed.