HARRISON L. WINTER, Chief Judge:
Plaintiff, who is black, sued defendant, his employer, alleging racial discrimination under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff alleges discrimination in defendant’s failure to promote him to the position of Deputy Commissioner of the Virginia Department of Mental Health and Mental Retardation. The district court granted defendant’s motion to dismiss under Fed.R.Civ.P. 41(b) at the close of plaintiff’s case.1 Plaintiff appeals, contending that the district court erred in finding that he failed to prove a prima facie case of discrimination.
We reverse and remand for further proceedings.
I.
Plaintiff Holmes is a forty-year-old black male. He received a Bachelor’s Degree in 1969, a Master’s Degree in 1970, and a Doctor of Philosophy Degree in 1977. In 1981 he became Assistant Commissioner for the Virginia Department of Mental Health and Mental Retardation (the department) by appointment of defendant Bevilae-qua’s predecessor in office.
Defendant Bevilacqua became head of the department in September 1981.2 At that time the department was managed by seven Assistant Commissioners, a Deputy Commissioner and the Commissioner. In January, 1983, defendant appointed Howard Cullum, a white male, as temporary, part-time acting Deputy Commissioner to fill a vacancy in that office pending recruitment of a permanent replacement.
[638] Plaintiff applied for the permanent position. He was a finalist, and he was interviewed by defendant and James Bozarth, Personnel Director of the Department. The interview was brief, and plaintiff was asked only four questions. In June, 1983, defendant gave Cullum the permanent appointment. Defendant advised plaintiff by letter that he preferred Cullum over plaintiff because “we need in the Central Office, the skill and experiencé that comes from municipal government and local community experience.” In a subsequent meeting between plaintiff and defendant, plaintiff expressed concern that the questions asked him at his interview did not touch upon his municipal government experience or his community experience. Defendant, according to plaintiff, said that he had made a “subjective” decision in making the appointment.
Plaintiffs evidence showed that immediately prior to his appointment to the temporary position, Cullum was Executive Director of the Virginia Beach Community Services Board. Cullum did not have a doctoral degree, had never served as director of a mental retardation facility, and had never published anything in a scholarly journal. Plaintiff, before becoming Assistant Commissioner of the Department, was Southern Regional Director for Mental Retardation Services of Nevada, serving a region with 600,000 people. He had experience directing a mental health institution and teaching and training teachers of handicapped children. He had published two papers in scholarly journals.
Applications for the position of Deputy Commissioner were received and screened by the Employment Supervisor of the Department on the basis of the criteria set forth in the promotion announcement. She rated plaintiff as the third highest ranking applicant, tied with another. She rated Cullum, who was given the appointment, as the fifth ranking applicant. Plaintiff had been rated by defendant with a numerical score of 3.9 out of a possible 4.0 earlier in his tenure at the department. Defendant told plaintiff that he had the “best-run division within the department.”
II.
As we have recently pointed out in Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4 Cir.), cert. denied, — U.S. —, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985), a plaintiff alleging racial discrimination in employment as a result of disparate treatment may prove his Title VII claim in several ways. First, he may introduce direct evidence of a defendant’s discriminatory intent; there is no such evidence here.3 Second, he may show discrimination using circumstantial evidence. This showing is part of a three-stage process:
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. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted).
The “burden of establishing a prima facie case is not a heavy one.” Young v. Lehman, 748 F.2d 194, 197 (4 Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2126, 85 L.Ed.2d 489 (1985); see also Moore, 754 F.2d at 1105. The plaintiff need only show by a preponderance of the evidence that a [639] qualified applicant was not promoted “under conditions which, more likely than not, were based upon impermissible racial considerations.” Gairola v. Commonwealth of Virginia Dept. of General Services, 753 F.2d 1281, 1286 (4 Cir.1985) (quoting Young at 196). See also Burdine, 450 U.S. at 253, 101 S.Ct. at 1093 (requiring “inference” of unlawful discrimination). This prima facie case creates a presumption of discrimination, “and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.” Burdine at 254, 101 S.Ct. at 1094.
Free access — add to your briefcase to read the full text and ask questions with AI
HARRISON L. WINTER, Chief Judge:
Plaintiff, who is black, sued defendant, his employer, alleging racial discrimination under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff alleges discrimination in defendant’s failure to promote him to the position of Deputy Commissioner of the Virginia Department of Mental Health and Mental Retardation. The district court granted defendant’s motion to dismiss under Fed.R.Civ.P. 41(b) at the close of plaintiff’s case.1 Plaintiff appeals, contending that the district court erred in finding that he failed to prove a prima facie case of discrimination.
We reverse and remand for further proceedings.
I.
Plaintiff Holmes is a forty-year-old black male. He received a Bachelor’s Degree in 1969, a Master’s Degree in 1970, and a Doctor of Philosophy Degree in 1977. In 1981 he became Assistant Commissioner for the Virginia Department of Mental Health and Mental Retardation (the department) by appointment of defendant Bevilae-qua’s predecessor in office.
Defendant Bevilacqua became head of the department in September 1981.2 At that time the department was managed by seven Assistant Commissioners, a Deputy Commissioner and the Commissioner. In January, 1983, defendant appointed Howard Cullum, a white male, as temporary, part-time acting Deputy Commissioner to fill a vacancy in that office pending recruitment of a permanent replacement.
[638] Plaintiff applied for the permanent position. He was a finalist, and he was interviewed by defendant and James Bozarth, Personnel Director of the Department. The interview was brief, and plaintiff was asked only four questions. In June, 1983, defendant gave Cullum the permanent appointment. Defendant advised plaintiff by letter that he preferred Cullum over plaintiff because “we need in the Central Office, the skill and experiencé that comes from municipal government and local community experience.” In a subsequent meeting between plaintiff and defendant, plaintiff expressed concern that the questions asked him at his interview did not touch upon his municipal government experience or his community experience. Defendant, according to plaintiff, said that he had made a “subjective” decision in making the appointment.
Plaintiffs evidence showed that immediately prior to his appointment to the temporary position, Cullum was Executive Director of the Virginia Beach Community Services Board. Cullum did not have a doctoral degree, had never served as director of a mental retardation facility, and had never published anything in a scholarly journal. Plaintiff, before becoming Assistant Commissioner of the Department, was Southern Regional Director for Mental Retardation Services of Nevada, serving a region with 600,000 people. He had experience directing a mental health institution and teaching and training teachers of handicapped children. He had published two papers in scholarly journals.
Applications for the position of Deputy Commissioner were received and screened by the Employment Supervisor of the Department on the basis of the criteria set forth in the promotion announcement. She rated plaintiff as the third highest ranking applicant, tied with another. She rated Cullum, who was given the appointment, as the fifth ranking applicant. Plaintiff had been rated by defendant with a numerical score of 3.9 out of a possible 4.0 earlier in his tenure at the department. Defendant told plaintiff that he had the “best-run division within the department.”
II.
As we have recently pointed out in Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4 Cir.), cert. denied, — U.S. —, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985), a plaintiff alleging racial discrimination in employment as a result of disparate treatment may prove his Title VII claim in several ways. First, he may introduce direct evidence of a defendant’s discriminatory intent; there is no such evidence here.3 Second, he may show discrimination using circumstantial evidence. This showing is part of a three-stage process:
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. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted).
The “burden of establishing a prima facie case is not a heavy one.” Young v. Lehman, 748 F.2d 194, 197 (4 Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2126, 85 L.Ed.2d 489 (1985); see also Moore, 754 F.2d at 1105. The plaintiff need only show by a preponderance of the evidence that a [639] qualified applicant was not promoted “under conditions which, more likely than not, were based upon impermissible racial considerations.” Gairola v. Commonwealth of Virginia Dept. of General Services, 753 F.2d 1281, 1286 (4 Cir.1985) (quoting Young at 196). See also Burdine, 450 U.S. at 253, 101 S.Ct. at 1093 (requiring “inference” of unlawful discrimination). This prima facie case creates a presumption of discrimination, “and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.” Burdine at 254, 101 S.Ct. at 1094.
Various circumstances may give rise to the inference of discrimination. In Young, for example, we agreed with the district court that irregular hiring procedures sufficed to establish a prima facie case. Young, 748 F.2d at 197.4 More frequently, plaintiffs establish a prima facie case using the Supreme Court’s formula in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This formula requires a plaintiff to show: (1) that he is a member of a protected class; (2) that he applied and was qualified for the job; (3) that though qualified he was rejected; and (4) that, “after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802, 93 S.Ct. at 1824.
Unquestionably, plaintiff has shown that he meets three prongs of the four-prong McDonnell Douglas test for establishing a prima facie case. He is black; he was qualified for the job; and he was rejected. The only question is whether “after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Defendant argues that since Cullum was appointed to the position, the position did not remain open, and hence the minimum requirements of McDonnell Douglas were not met.
The courts which have considered cases of alleged discrimination in promotion under the McDonnell Douglas formulation have treated the requirement that the “position remained open” after plaintiff’s rejection as satisfied by proof that the position was not abolished and have not required proof that the position remained unfilled.5 Such an approach is entirely in accord with the rationale of the McDonnell Douglas formulation as explained in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396, where it was said
The McDonnell Douglas case involved an individual complainant seeking to prove one instance of unlawful discrimination. An employer’s isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based. Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discrimina-tee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one.
[640] If a purpose of the formulation is to negate the possible legitimate reason that a vacancy did not exist, that purpose is served where there is proof that the position continued even though the position was filled.
This is the implicit view that we took in Page v. Bolger, 645 F.2d 227 (4 Cir.) cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981), a case of alleged discrimination in the failure to promote the plaintiff to either of two separate positions. In both instances, there was an immediate promotion of another candidate, and yet in commenting on whether plaintiff had proved a prima facie case under McDonnell Douglas, we said that defendant had properly conceded that a prima facie case had been proved because, inter alia, the evidence showed that after plaintiff was denied promotion, “the positions thereafter remained open and were in fact filled by the employer from other applicants possessing his general qualifications.” Id. at 229-30.
It is the explicit view taken by the Eighth Circuit in Bell v. Bolger, 708 F.2d 1312, 1315 (8 Cir.1983). There the court held that plaintiff had proved a prima facie case of age and race discrimination under the McDonnell Douglas formulation, saying:
As the Supreme Court stated in Bur-dine, supra, “[t]he burden of establishing a prima facie ease of disparate treatment is not onerous.” 450 U.S. at 253, 101 S.Ct. at 1093. Bell presented evidence that he was a member of two protected classes: he is black and was between the ages of forty and seventy at the time he applied for a promotion. Bell was qualified for the position of Labor Relations Assistant; he was one of the seven “best qualified” applicants who were interviewed for the position. Bell was rejected by the review committee, however, and the Postal Service promoted a young white male to fill the position. These facts are sufficient to establish a prima facie case.
III.
We conclude that plaintiff proved a prima facie case of race discrimination in the failure to promote him to Deputy Commissioner. The district court erred in granting defendant’s motion to dismiss at the close of plaintiff’s case.
REVERSED AND REMANDED.