# Johnson v. Uncle Ben's, Inc. > Court of Appeals for the Fifth Circuit · September 30, 1981 · 657 F.2d 750 URL: https://www.frixlaw.com/law-library/cases/8913848 ## Case - **Full name:** Thomas JOHNSON, Individually and on behalf of all others similarly situated v. UNCLE BEN'S, INC. - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** September 30, 1981 - **Citations:** 657 F.2d 750; 26 Fair Empl. Prac. Cas. (BNA) 1417; 27 Empl. Prac. Dec. (CCH) 32,165; 1981 U.S. App. LEXIS 17255 - **Precedential status:** Published - **Opinion:** Dissent by Thomas - **Judges:** Johnson, Thomas, Vance - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8913848 ## Opinion text DANIEL H. THOMAS, District Judge, dissenting: The majority has determined that this ease is unaltered by the decision of the United States Supreme Court in Burdine. This decision is based on the distinction between a case of disparate treatment and a case of disparate impact. The question which arises is what burden is placed on the employer after the plaintiff puts forth a prima facie case of discrimination. Prior to Burdine, as the majority has stated, in a disparate treatment case the employer had to rebut the prima facie ease by a preponderance of the evidence. After Burdine, the employer need only bear the burden of production of evidence of a legal reason for his action. Thus the burden of the employer is a burden of production rather than a burden of proof as required by this Circuit prior to Burdine. In a disparate impact case, the burden placed upon the employer to rebut a prima facie case is a showing that the questioned standard to practice has a manifest relationship to the employment. The majority has carefully selected and emphasized language from a Supreme Court case which allegedly “describes the burden in a disparate impact case.” The majority emphasizes the word “proves” in the statement “(i)f the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices . . . would also ‘serve the employer’s legitimate interest . . . ’” This wording would seem to indicate that the employer must assume the burden of proof in any disparate impact case, and this is the precedent in this Circuit to date. I believe, however, that in referring this Court to Burdine, the Supreme Court did not wish this Court to distinguish a case involving disparate treatment, such as Bur-dine, and a case involving disparate impact, such as this case. The majority is correct in pointing out that Burdine acknowledges and affirms a distinction between the two types of cases. The Supreme Court in Bur-dine “set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment.” The Court then footnoted that “(w)e have recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes.” The majority has taken these statements together with the prior Supreme Court statement regarding “proof” required of the employer and has determined that “(t)he respective burdens in a disparate impact case are thus governed by clear and recent Supreme Court precedent unaltered by Burdine.” If such be the case, there was no reason for the Supreme Court to refer this Court to Bur-dine. I believe that the burden of proof in all cases of disparate treatment and disparate impact remains with the plaintiff and that only the burden of production shifts to the employer. The “character of the evidence” required of the employer in .each type of case will vary as do the factual situations, but the “basic allocation of burdens and order or presentation of proof” remains the same in each type of case. In regard to this case, however, I do not find the necessity of determining this “burden” in regard to all issues other than discrimination against blacks with respect to promotions. As I stated in my previous dissent, I conclude that the district court did not err in holding that the plaintiffs failed to establish a prima facie case in regard to these issues. I, therefore, am of the opinion that no burden needed to be met by the employer in regard to these issues. *755 As previously stated in my original dissent, I conclude that the district court’s findings regarding the lack of discrimination in the promotion of blacks was not clearly erroneous. The majority in its original opinion held that the clearly erroneous standard of review did not apply to findings based on an erroneous view of legal principles. The majority then undertook an “independent analysis of the record in light of the correct legal standards.” The district court determined that plaintiffs’ statistical evidence and testimonial evidence made out a prima facie case of discrimination against blacks on the promotion issue, but held that this had been rebutted by both the absence of discriminatory impact and the presence of legitimate, non-discriminatory explanations of the status quo and further determined that plaintiffs did not introduce evidence that these explanations were pretextual. I would affirm the judge of the district court outright. I therefore respectfully dissent from the modification and remand of the majority opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8913848. Public record. Not legal advice.