Clyde SMITH, Plaintiff-Appellant, v. STATE OF GEORGIA and the Department of Human Resources, Et Al., Defendants-Appellees

749 F.2d 683, 1985 U.S. App. LEXIS 27440, 35 Empl. Prac. Dec. (CCH) 34,884, 36 Fair Empl. Prac. Cas. (BNA) 1176

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 2, 1985
• Docket: 83-8753
• Status: Published

Opinions

DANIEL HOLCOMBE THOMAS, District Judge:

FINDING OF FACTS

Clyde Smith brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 and the First and Fourteenth Amendments of the United States Constitution. Smith alleges violations of his rights because he was denied promotion to a supervisory position in retaliation for his testifying in behalf of a coworker in her sex discrimination action against the employer.

Smith is a white male employed by the Disability Adjudication Section (DAS) of the Department of Human Resources of the State of Georgia. The DAS has the responsibility of examining applications for benefits under the United States Social Security System. Hired as a counselor in 1967, Smith subsequently received several promotions and eventually was elevated to the Quality Assurance Unit in March, 1975. Since this last promotion Smith has on several occasions unsuccessfully attempted to obtain a promotion to the position of supervisor.

Juanita Nicholson, a DAS counselor and co-worker of Clyde Smith, filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) against the DAS in March of 1974. Nicholson amended her charge to include a claim for retaliation. At an agency grievance hearing on April 2, 1975, Smith, along with other employees, testified in favor of Nicholson. Promotions to supervisory positions were made by the DAS between April 1, 1975, and December 1, 1978; however, none of those who served as witnesses in the grievance hearings were given those promotions, even though those persons applied repeatedly and some were seemingly qualified.¹

The factual time frame that is relevant to this appeal concerns the events relating to the July, 1977, promotions. For the July, 1977, selection, William Jenkins, Director of the DAS, approved the following evaluation process. Candidates were reviewed based on three criteria: (1) oral interviews; (2) a review of each applicant’s use of sick leave; and (3) a questionnaire completed by the immediate supervisor. The candidates’ respective supervisors were asked to rate the applicant on a numerical point scale for productivity, quality of work, degree of supervision required, dependability, knowledge of job, ability to work with others, and the ability to communicate with others. James T. Bell, a supervisor of five of the eleven candidates in July, 1977, gave each of his supervisees a perfect score of twenty in the categories of ability to communicate with others and ability to work with others.²

The evaluation committee who reviewed the scores of all eleven applicants believed that Bell’s ranking was not in compliance with that of the other supervisors, and consequently compiled two lists for submission to Jenkins. These two lists had the names of the five highest ranking applicants of the entire eleven. The lists were referred to as the pre-adjustment list and the post-adjustment list. The pre-adjustment list included the names of the five candidates ranked highest strictly as the points were assigned by each candidate’s supervisor. The post-adjustment list included the names of the five highest ranking candidates awarding every candidate the maximum score in the categories of ability to work with others and ability to communicate with others. Smith’s name was on both lists. He was ranked No. 3 on the pre-adjustment list and No. 2 on the post-adjustment list. This proved to be crucial because only two promotions were available. The committee submitted both lists to Jenkins with a memorandum explaining why the two lists were compiled. The committee did not indicate a preference for either list. Jenkins, exercising his discretion and authority as the appointing director, promoted the top two candidates as recorded on the pre-adjustment list. As a result, Smith did not receive a promotion.

After receiving a right to sue letter from the EEOC, Smith filed a complaint in the district court contesting his employer’s failure to promote him in July, 1977, December, 1977, and December, 1978.³ The district court made findings of fact and conclusions of law finding that Smith had established a prima facie case of a violation of § 704 of the Civil Rights Act regarding the July, 1977, promotion. The court then held that the burden of proof shifted to the defendant to articulate a legitimate non-discriminatory reason for his failure to promote Smith. See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The district court held that the defendant had met the burden. Accordingly, the court entered judgment for the defendants since Smith did not successfully rebut the defendant’s evidence.

The plaintiff subsequently appealed the decision to the Eleventh Circuit. Smith v. State of Georgia, 684 F.2d 729 (11th Cir.1982). In that appeal this court affirmed part of the lower court’s ruling but remanded several issues to the district court for further findings and clarification. On remand the district court was instructed to make specific findings as to the essential fact of Jenkins’ motivation in choosing between the pre-adjustment and post-adjustment lists,, Also, the district court was asked to clarify whether it considered evidence of past acts of retaliation against similarly situated employees as relevant in making its determination. Id. at 734-36.

DISTRICT COURT’S FINDINGS ON REMAND

On remand, the district court granted plaintiff Smith’s motion to supplement the record with a portion of the transcript in a July, 1978, hearing before the State Personnel Board. Using this evidence, along with the evidence of the first trial, the district court held Jenkins’ motivation in using the “pre-adjustment” list instead of the “post-adjustment” list was that “Jenkins simply determined that the list which was compiled based on the agreed upon criteria was more reliable than the one in which the data had been manipulated.” (District Court’s Order p. 15) After making this specific finding, the court found that Jenkins’ reason for not promoting Clyde Smith in July, 1977, was a legitimate, non-discriminatory reason. See, Burdine, supra.

In addition, the court held that the evidence of past discriminatory acts by Jenkins did not convince the court that Jenkins had discriminated against the plaintiff in this particular case. Pursuant to these findings by the district court, the plaintiff filed the present appeal.

STANDARD OF REVIEW

In reviewing the findings of fact of the court below, this court is guided by the clearly erroneous standard of Rule 52(a). That standard is appropriately used for questions of “ultimate fact”, such as discrimination or non-discrimination. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).

CONCLUSIONS OF LAW

The most important issue to be addressed on this appeal is whether the defendant Jenkins articulated a “legitimate, non-discriminatory” reason for selecting the list that resulted in Smith not being promoted to supervisor. As stated above, the district court applied the Burdine standard of shifting the burden of proof to reach its decision. The appellant contends that the district court erred in finding that the defendant had stated a non-discriminatory reason and that the court misapplied the Burdine standard. For the reasons to be developed below, this court does not find the appellant’s arguments persuasive and therefore AFFIRMS the decision of the district court.

The facts that are presented in the present case are such that the proper analysis to be employed is the standard promulgated in Burdine. Compare Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) with Bell v. Birmingham Linen Services, 715 F.2d 1552 (11th Cir.1983) and Eastland v. TVA, 704 F.2d 613 (11th Cir.1983). In Burdine the Supreme Court held that in a Title VII case where no direct evidence of discrimination exists against the selecting official, the standard to be employed is a shifting of the burden of proof between the plaintiff and the defendant. Burdine instructs that first, the plaintiff must prove a prima fa-cie case of discrimination by a preponderance of the evidence. Next, if the plaintiff meets his initial burden then the burden of proof is shifted to the defendant and the defendant must articulate a legitimate nondiscriminatory reason for not selecting or promoting the aggrieved employee. Finally, if the defendant meets his burden, the burden of proof is then shifted back to the plaintiff. Now the plaintiff must prove that the defendant’s reasons for not selecting or promoting the aggrieved employee are merely pretextual. Burdine, supra, 450 U.S. at 252-53, 101 S.Ct. at 1093-94.

In applying the facts of the instant case to the Burdine analysis this court is of the opinion that the defendant Jenkins did meet his burden of proof. Since it is not disputed that plaintiff Smith stated a prima facie case against defendant Jenkins, the burden of proof pursuant to Burdine, shifted to the defendant. Jenkins’ burden was to articulate a legitimate non-discriminatory reason for not promoting Smith. Burdine, supra, at 253, 101 S.Ct. at 1093. His was a burden of production not persuasion. Burdine, supra, at 255, 101 S.Ct. at 1094. Eastland, supra at 626; Lee v. Russell County Board of Education, 684 F.2d 769, 773 (11th Cir.1982).

The testimony in the record indicates that Jenkins decided to use the preadjustment list on which Smith was ranked number three instead of the post-adjustment list on which Smith was ranked number two because the pre-adjustment list more accurately complied with the agreed upon criteria as established at the inception of the selection process.⁴ Further, it is apparent from a reading of his testimony that Jenkins decided not to go behind Bell’s interpretation of the selection procedure since Jenkins considered Bell’s evaluation fair and well reasoned. Hence, this court is convinced that Jenkins articulated a legitimate nondiscriminatory reason for his action.

The appellant argues not only was the reason stated by Jenkins not a “legitimate nondiscriminatory” reason but also that Smith should have been awarded judgment as a matter of law at the end of his prima facie case. In view of the above evidence, it is obvious that the appellant’s first argument fails. Thus, we turn to his second argument.

Relying upon the authority of East-land, supra, and Bell, supra, Smith asserts that the district court misapplied the Burdine analysis by requiring the defendant Jenkins to merely state and not prove his reasons for not promoting Smith. In Bell and Eastland this court recognized that the Burdine standard is not the only way in which to determine whether or not Title VII has been violated. Both Bell and Eastland hold that where direct evidence of discrimination against the defendant exists, then that defendant cannot rebut the plaintiff’s prima facie case by a mere articulation of a legitimate nondiscriminatory reason for the action taken. Bell, supra at 1557; Eastland, supra at 626. See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Perryman v. Johnson Products Co., 698 F.2d 1138, 1143 (11th Cir.1983). However, the evidence of discrimination in the present case does not approach the standard required by Bell or Eastland. Consequently, the standards of those cases are not applicable here.

Therefore, we hold that the district court properly applied the principles of Burdine and that the defendant Jenkins met his burden of proof by articulating a legitimate non-discriminatory reason for not promoting the plaintiff-appellant Smith.

AFFIRMED.

1 . Statistical evidence would support the fact that at least some of those testifying employees would have been promoted given the number of times they applied and the number of other applicants.

2 . Smith was not under the supervision of Bell. Previously the court of appeals held that Bell’s action did not violate Smith’s due process rights. Smith v. State of Georgia, 684 F.2d 729, 733 (11th Cir.1982).

3 . This appeal only concerns the selection in July, 1977.

4 . Jenkins was asked specifically why he chose one list over the other:

Q: Tell us why you selected the list which rated Jolene Green ahead of Clyde Smith rather than going by the list that rated Clyde Smith ahead of Jolene Green?

A: Well, this was a pre-agreed to criteria that well, was presented to me. We had pre - - previously agreed to this criteria and these evaluated criteria for criteria for the rankings. And, since they were previously agreed to, this is the ranking that I chose. Record 451-53.