Toney v. Block

TAMM, Circuit Judge,

concurring in the result:

Although I agree with the result reached by the majority in this case, I would affirm the district court on the ground that the court was not clearly erroneous in holding that appellee had proved by clear and convincing evidence that appellant would not have been promoted even absent discrimination.

After Toney filed a formal complaint of racial discrimination, a hearing was conducted by an EEO Complaints Examiner. She recommended a finding of “discrimination.” Findings and Recommended Decision, In re Toney, at 4 (Jan. 28, 1978), Appendix (App.) at 9. Based on this finding the Examiner recommended, and Toney received, priority consideration for the next GS-14-level opening in the Office of Personnel. See Findings of Fact and Conclusions of Law, Toney v. Bergland, Civ.Action No. 78-1007, at 5 (D.D.C. Oct. 9,1981), App. at 34. Because the Examiner did not find that Toney would have been hired but for the discrimination, she proposed no back pay award. Findings and Recommended Decision, In re Toney, at 4-5 (Jan. 28,1978), App. at 9-10. The Examiner’s decision became the final decision of the Department when the Department failed to issue its own decision within thirty days, as required *278 by 5 C.F.R. § 713.220 (d) (1977) (current version at 29 C.F.R. § 1613.220 (d) (1982)). 1

Dissatisfied with the relief accorded him by the Examiner, Toney filed suit in the District Court for the District of Columbia, seeking back pay and additional relief. On cross-motions for summary judgment on the administrative record, the district court entered judgment for the Department on the basis that the Department had shown by clear and convincing evidence that Toney would not have been hired even in the absence of discrimination. Toney appealed that decision to this court, and we remanded the case because we discerned a genuine issue of fact material to the district court’s finding. Toney v. Bergland, 645 F.2d 1063, 1064, 1067 (D.C.Cir.1981) (per curiam). We instructed the district court on remand to enter findings of fact based either on a trial or on the administrative record. Id. at 1070 .

After a hearing in the district court on September 8 and 9, 1981, at which testimony was taken, the district judge found that “the selection of Kyle was not the result of racial discrimination.” Findings of Fact and Conclusions of Law, Toney v. Bergland, Civ.Action No. 78-1007, at 6 (D.D.C. Oct. 9, 1981), App. at 35. The court reached this conclusion by evaluating the evidence within the framework of the three-stage test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 , 93 S.Ct. 1817, 1824-1825 , 36 L.Ed.2d 668 (1973). The court found that although the administrative record revealed that Toney had established a prima facie case of racial discrimination, the Department had articulated a legitimate, nondiscriminatory reason for not promoting Toney, and Toney had failed to prove that this reason was a pretext for discrimination. In the alternative, the district court, applying the test of Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976) (per curiam), found that even if the decision not to promote appellant was discriminatory, Toney was not entitled to relief because the Department had proved by clear and convincing evidence that Toney would not have been promoted even in the absence of discrimination.

Toney appealed that judgment to this court, challenging both of the district court’s alternative holdings. He asserts that the court did not give proper effect to the Examiner’s finding of “discrimination.” See note 1 supra. He also contends that the court erred in finding that the Department had proved by clear and convincing evidence that he would not have been promoted even absent racial discrimination. Brief for Plaintiff-Appellant at 1, 7. Because of the ambiguity of the Examiner’s decision in this case and the parties’ dispute over its significance, I would address only the challenge directed to the district court’s application of the Day v. Mathews standard.

On the basis of its finding that the Department proved by clear and convincing evidence that even absent discrimination Toney would not have been promoted, 2 the district court, applying the test set out in Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976) (per curiam), concluded that as a mat *279 ter of law Toney was not entitled to back pay or other retroactive relief. Review of this legal conclusion is not constrained by the clearly erroneous standard. See 5A J. Moore & J. Lucas, eds., Moore's Federal Practice ¶ 52.03[2] (2d ed. 1982). I would hold that the district judge properly applied the Day v. Mathews test. In Day v. Mathews we held that an employer can defeat a successful plaintiff’s right to back pay and other relief only by proving by clear and convincing evidence that the plaintiff would not have been hired or promoted even absent discrimination. This test applies only after a particular plaintiff proves that he or she was a victim of unlawful discrimination. Milton v. Weinberger, 696 F.2d 94, 98-99 (D.C.Cir.1982). It has no relevance to the liability phase of a Title VII suit. 3

My focus is on the remedial stage of the case since I, like the district court, have assumed the Department’s liability for unlawful discrimination. The issue at trial was whether Toney was entitled to relief in addition to the priority consideration for promotion he received as a result of the Examiner’s recommendation — specifically, back pay to compensate him for the wages he allegedly would have earned had he been promoted instead of Kyle.

The legislative history of Title VII clearly shows that Congress’ intent in providing for awards of back pay to successful plaintiffs was to provide á “make whole” remedy. 118 Cong.Rec. 7168 (1972) (discussing section 706(g) of the Equal Employment Opportunity Act of 1972, which is “similar” to section 706(g) of the 1964 act). Title VII remedies are intended to restore victims of discrimination “to a position where they would have been were it not for the unlawful discrimination.” Id. This requirement of a “but for” causal relationship between the unlawful discrimination and the claimed economic loss has been noted by the Supreme Court. In Franks v. Bowman Transportation Co., 424 U.S. 747 , 96 S.Ct. 1251 , 47 L.Ed.2d 444 (1976), the Court discussed the propriety of awards of retroactive seniority. The Court held that because section 10(c) of the National Labor Relations Act was the “model” for the remedial section of Title VII and because the two sections have the same “make whole” purpose, the standards governing the award of retroactive relief under section 10(c) of the NLRA are applicable to Title VII proceedings. Id. at 769 , 96 S.Ct. at 1266 . The Court noted that relief under section 10(c) of the NLRA is intended to “ ‘restor[e] the economic status quo that would have obtained but for the company’s wrongful [act].’ ” Id. at 769 , 96 S.Ct. at 1266 (emphasis added) (quoting NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 , 90 S.Ct. 417, 420 , 24 L.Ed.2d 405 (1969)). The Court in Franks fully adopted the “but for” causal standard: retroactive relief under Title VII is available to the extent necessary to place the plaintiff in the same position he or she would have occupied but for the employer’s discrimination. Id. 424 U.S. at 767, 768 , 96 S.Ct. at 1265-1266 ; see Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 , 95 S.Ct. 2362, 2372 , 45 L.Ed.2d 280 (1975).

It has proved easier to articulate this principle than to apply it. The Supreme Court has offered practical guidance only in *280 the context of individual remedial determinations in a class action. In Franks v. Bowman Transportation Co., 424 U.S. 747, 773 , 96 S.Ct. 1251, 1268 , 47 L.Ed.2d 444 (1976), the Court discussed how an employer found liable for class-wide discrimination can defeat awards of retroactive seniority to individual class members. The Court noted that to accomplish this the employer must bear the burden of proving that there was no vacancy in the position sought, that an individual lacked the qualifications for a position sought, or that the individual, even if hired, would not have performed satisfactorily and thus would not have earned seniority from the hiring date. Id. at n. 32.

Similarly, in International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977), the Court discussed how an employer guilty of class-wide discrimination can defeat claims by individual class members who did not apply for jobs allegedly because of the employer’s discriminatory hiring practices. The individual must first come forward with evidence of his or her qualifications for the positions he or she would have sought. The employer must then show that the claimant would not have been hired in any event because more qualified applicants would have been selected or because the claimant was not sufficiently qualified for the job. Id. at 369 n. 53, 97 S.Ct. at 1872 n. 53; accord East Texas Motor Freight System v. Rodriguez, 431 U.S. 395 , 403 n. 9, 97 S.Ct. 1891 , 1896 n. 9, 52 L.Ed.2d 453 (1977).

From Franks and Teamsters we know that the employer bears the burden of proving that an individual class member would not have been hired or promoted regardless of the employer’s discrimination. 4 This burden is implicitly premised on application of the “but for” causal standard: an individual discriminatee is entitled to retroactive relief unless the employer can prove that factors other than discrimination would have prevented the employee from occupying the position in which the relief would place him or her. Factors mentioned in Franks and Teamsters that can permissibly account for the employment decision are (1) no vacancy in the position sought, (2) an individual’s lack of qualifications for the position sought, (3) better-qualified candidates for a position who would have been chosen instead of the class member, and (4) no accrual of seniority by an individual even if he or she had been hired.

Although the Supreme Court in Franks and Teamsters indicated that the employer bears the burden of proof in seeking to defeat an individual’s entitlement to relief, the Court did not elucidate how heavy a burden the employer bears. In Franks , however, the Court cited with approval Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir.), cert. denied, 419 U.S. 1033 , 95 S.Ct. 515 , 42 L.Ed.2d 308 (1974), in which the Fifth Circuit held that the employer must carry this burden by “clear and convincing evidence.” Id. at 445 . The Court’s citation of Baxter was never *281 theless ambiguous since the citation was only to the two pages preceding the Fifth Circuit’s articulation of this standard. Franks, 424 U.S. at 773 , 96 S.Ct. at 1268 (citing Baxter, 495 F.2d at 443-44 ). Thus, the Supreme Court has not clearly decided the question of the employer’s burden of proof on this point. When faced with the issue, we followed the Fifth Circuit and adopted the clear and convincing evidence standard. Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976) (per curiam). Day is the seminal case on this issue in this circuit, and we have followed it consistently. Weahkee v. Perry, 587 F.2d 1256 (D.C.Cir.1978); Rogers v. EEOC, 551 F.2d 456 (D.C.Cir.1977) (per curiam).

Unlike Franks and Teamsters, however, which were class actions, Day v. Mathews was an individual Title VII suit. The employer there had been adjudged guilty of unlawfully discriminating against a particular individual with respect to a particular employment action. Although the separateness of the liability and remedial inquiries is more easily seen in a class action suit, see Special Project, Back Pay in Employment Discrimination Cases, 35 Vand.L.Rev. 893 (1982), the inquiries are equally separate in an individual Title VII suit. Smith v. Secretary of the Navy, 659 F.2d 1113, 1120 (D.C.Cir.1981). Apart from proving the employer’s liability for discrimination, the individual plaintiff must prove that he or she is entitled to a particular form of relief. Although proof of discrimination may automatically entitle an individual to prospective relief, see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 361 , 97 S.Ct. 1843, 1867-1868 , 52 L.Ed.2d 396 (1977), it does not automatically entitle the plaintiff to retroactive relief, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 , 95 S.Ct. 2362, 2370 , 45 L.Ed.2d 280 (1975). Nevertheless, an award of back pay “should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id. at 421 , 95 S.Ct. at 2373 (footnote omitted).

The Day v. Mathews test respects the purposes of Title VII as articulated by the Supreme Court in Albemarle. A fundamental premise of Day is that proof of discrimination in the McDonnell Douglas sense does not necessarily negate the possibility that factors other than discrimination would have led to the same employment action. It is currently uncertain what degree of causal nexus between the consideration of an impermissible criterion and the alleged injury must be shown in order to prove discrimination under Title VII. See generally Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L. Rev. 292 (1982). It is at least clear that the Title VII plaintiff need not prove that the discriminatory factor was the sole factor in the employment decision. 110 Cong.Rec. 13,837-38 (1964) (amendment that would have required proof of sole causation rejected by Congress); see generally Brodin, supra, at 296-97. The Supreme Court has not expressly decided the issue, cf. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 , 96 S.Ct. 2574, 2579 , 49 L.Ed.2d 493 n. 10 (1976) (suggesting that proof of pretext requires proof of “but for” causation), and other federal courts have wavered among “but for,” “substantial factor,” and “a” factor causation. See generally Brodin, supra, at 308-09. The best view is that proof of unlawful discrimination requires merely proof that discrimination was a factor in the employment decision. See 110 Cong.Rec. 13,088 (1964) (remarks of floor manager, Sen. Humphrey) (“What the bill does ... is simply to make it an illegal practice to use race as a factor in denying employment.”); Jones v. Trailways Corp., 477 F.Supp. 642, 646 (D.D.C.1979); cf. Cuddy v. Carmen, 694 F.2d 853, 856-57 , 858 n. 23 (D.C.Cir.1982) (under Age Discrimination in Employment Act, plaintiff must prove that age was “a determining factor” in the employment decision); see generally Cunningham v. Central Beverage, Inc., 486 F.Supp. 59, 62-63 (N.D.Tex.1980); Brodin, supra, at 310 n. 80 (suggesting that a less rigorous causation standard should apply in *282 Title VII cases because Title VII is aimed at “invidious discrimination”).

Once the plaintiff proves the employer’s liability, the Day v. Mathews standard allows the employer to prove that discrimination was not the decisive factor in the decision and thereby to disprove a “but for” causal connection between the discrimination and the employment action. See Beckwith v. Hampton, 430 F.Supp. 183, 184-85 (D.D.C.1977); see also Cunningham v. Central Beverage, Inc., 486 F.Supp. 59, 62 (N.D.Tex.1980). Allowing the employer to defeat a claim for retroactive relief by disproving “but for” causation effectuates Title VII’s “make whole” purpose. If the employer were not allowed to show that the same employment decision would have resulted even absent discrimination, the Title VII plaintiff who receives retroactive relief might be placed in a better position than he or she would have occupied if the employer had not acted unlawfully. See Mt. Healthy City School Dist. Board of Educ. v. Doyle, 429 U.S. 274, 285-86 , 97 S.Ct. 568, 575 , 50 L.Ed.2d 471 (1977); see also Mallard v. Claytor, 471 F.Supp. 16 , 22 n. 1 (D.D.C.1978). 5

Similarly, the separation of the liability and remedial inquiries and the differing standards of causation at those stages reflect the deterrent purpose of Title VII. By making an impermissible criterion even a factor in an employment decision, the employer faces liability for declaratory, injunctive, and other prospective relief. See generally Brodin, supra, at 318 n. 110. Although prospective relief may not be as costly to the employer as an award of back pay, compliance with a court’s relief orders has some costs; these costs, and the finding of liability-'itself, undoubtedly deter the employer from unlawfully discriminating.

The requirement of clear and convincing proof also furthers Title VII’s deterrent purpose. By making it more difficult for employers to defeat successful plaintiffs’ claims to retroactive relief, the higher standard of proof may well discourage unlawful conduct by employers. See Day v. Mathews, 530 F.2d at 1086 . In addition, the higher standard of proof is justified by the consideration that the employer is a wrongdoer whose unlawful conduct has made it difficult for the plaintiff to show what would have occurred in the absence of that conduct. See id.; see also International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 359 n. 45, 97 S.Ct. 1843 , 1867 n. 45, 52 L.Ed.2d 396 (1977). Some courts, however, have spurned the clear and convincing evidence standard, holding that the employer’s burden of proof is by a preponderance of the evidence. Richerson v. Jones, 551 F.2d 918, 923-25 (3d Cir.1977); United Transportation Union Local No. 974, AFL-CIO v. Norfolk & W. Ry. Co., 532 F.2d 336, 341 (4th Cir.1975), cert. denied, 425 U.S. 934 , 96 S.Ct. 1664 , 48 L.Ed.2d 175 (1976). In light of the purposeful rationale for requiring clear and convincing proof and the lack of a compelling justification for adopting the preponderance of the evidence standard, I would reaffirm our adherence to the Day v. Mathews test. 6

Misapplication of the Day v. Mathews standard at the liability stage of Title VII cases, see note 3 supra, and use of the standard at the individual relief stage of Title VII class actions, see note 4 supra, have led to confusion and doubt about the wisdom of the Day test. I believe, however, that properly applied the standard admirably serves the purposes of Title VII. The separation of the liability and remedial *283 inquiries and the differing standards of causation at those stages — which are inherent in Day — further Title VII’s compensation and deterrent purposes while balancing the competing interests of the plaintiff, the employer, and the public. Accord Brodin, supra, at 323-26. I would affirm- the district court’s judgment because the court correctly applied Day solely in determining the appropriate remedy for the unlawful discrimination and correctly required the Department to prove by clear and convincing evidence that Toney would not have been promoted even in the absence of discrimination.

. The parties contested the nature of the Examiner’s finding of “discrimination.” The Department contested the liability issue on the ground that the Examiner’s finding of “discrimination” was not a finding that Toney had been the victim of disparate treatment because of his race with respect to the promotion decision at issue. Toney, on the other hand, argued that the Examiner’s finding meant that he had been the victim of disparate treatment because of his race.

. The district court denominated its finding on the Day v. Mathews issue a “Conclusion of Law,” but the court’s finding that Toney would not have been hired even absent discrimination is a finding of fact, which must be affirmed unless “clearly erroneous.” Fed.R.Civ.P. 52(a). Although there is a paucity of authority on this question, I believe the court’s finding that this fact was proved by clear and convincing evidence is also reviewable under the clearly erroneous standard. See Jones v. Pitt County Board of Education, 528 F.2d 414, 417-18 (4th Cir.1975); Hobson v. Eaton, 399 F.2d 781, 785 (6th Cir.1968), cert. denied, 394 U.S. 928 , 89 S.Ct. 1189 , 22 L.Ed.2d 459 (1969). In my view, the district court’s finding that the Department proved by clear and convincing evidence that Toney would not have been hired even absent discrimination is not clearly erroneous.

. Some courts have applied the Day standard to require the employer to rebut the plaintiffs prima facie case by proving that the employment decision would have been the same even absent discrimination. E.g., Foster v. Simon, 467 F.Supp. 533, 536 (W.D.N.C.1979); Jones v. Middendorf, 454 F.Supp. 1276, 1287, 1289 (E.D.Okl.1978) (apparently applying Day standard at liability stage). This application of Day has been induced, no doubt, by the following statement in the Day opinion: “a prima facie showing of discrimination shifts the burden to the employer to prove that the employee (or applicant) would not have gotten the post in any event, even absent discrimination.” 530 F.2d at 1085 . Nevertheless, immediately following the Day decision, the district judges of this circuit interpreted Day as applying at the remedial stage only. E.g., Beckwith v. Hampton, 430 F.Supp. 183, 184-85 (D.D.C.1977); Stephenson v. Simon, 427 F.Supp. 467, 472-73 (D.D.C.1976). The Supreme Court has now made it clear that the employer does not bear the burden of proof in rebutting the plaintiffs prima facie case, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981); thus, use of the Day v. Mathews standard to measure the adequacy of the employer’s rebuttal of the plaintiffs prima facie case is clearly incorrect.

. It is apparently still uncertain whether the . three-stage order of proof under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 , 93 S.Ct. 1817, 1824-1825 , 36 L.Ed.2d 668 (1973) (prima facie case, legitimate nondiscriminatory reason, pretext), applies at the individual relief stage of a class action. If so, the employer initially must merely articulate a legitimate nondiscriminatory reason for its failure to hire or promote the individual, and the claimant must then prove that this reason is only a pretext for discrimination. See Sledge v. J.P. Stevens & Co., 585 F.2d 625, 637 (4th Cir.1978) (adopting a modified McDonnell Douglas approach at individual relief stage), cert. denied, 440 U.S. 981 , 99 S.Ct. 1789 , 60 L.Ed.2d 241 (1979). Language in the Supreme Court’s decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 362 & n. 50, 97 S.Ct. 1843 , 1868 & n. 50, 52 L.Ed.2d 396 (1977), implies that a McDonnell Douglas analysis is necessary at the individual relief stage. However, the weight of authority currently seems to be that the employer’s burden of articulating a legitimate nondiscriminatory reason is replaced at the individual relief stage of a class action by the burden of persuading the court that the adverse employment action was not due to unlawful discrimination. See generally Special Project, Back Pay in Employment Discrimination Cases, 35 Vand.L.Rev. 893, 924-26, 978-82, 986-87 (1982). Several courts, including this court, have applied the Day v. Mathews test for determining the employer’s burden. McKenzie v. Sawyer, 684 F.2d 62 (D.C.Cir.1982); Association Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256 , 289 (2d Cir.1981).

. Shifting the burden of proof from plaintiff to employer is consistent with the Supreme Court’s analysis of the causation issue in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 , 270 n. 21, 97 S.Ct. 555 , 566 n. 21, 50 L.Ed.2d 450 (1977) (once plaintiff establishes that race was “a motivating factor” in the decision, burden shifts to defendant to prove that other, permissible considerations would have led to same result).

. The Ninth Circuit has adopted the Day v. Mathews standard in determining the appropriate remedy in cases of individual discrimination. Nanty v. Barrows Co., 660 F.2d 1327, 1333 (9th Cir.1981); Marotta v. Usery, 629 F.2d 615, 618 (9th Cir.1980). See also Maine Human Rights Comm’n v. City of Auburn, 425 A.2d 990, 995-96 (Me.1981) (adopting Day standard for use at remedial stage of suits brought under Maine Human Rights Act).