holding that even though the plaintiff scored higher than the selected candidate, it was not enough to show that the failure to promote was based on the plaintiff’s race
How later courts described this case
- holding that even though the plaintiff scored higher than the selected candidate, it was not enough to show that the failure to promote was based on the plaintiff’s race
- upholding dis missal on alternative grounds that plaintiff did not prove prima facie case and that record as a whole supported finding of no discrimination
- explaining the McDonnell Douglas test in the context of claims of discriminatory denial of promotion
- noting that municipal government experience can be valid reason for promoting nonmember of protected class over member
Written by the judges who cited it.
The opinion
MURNAGHAN, Circuit Judge,
concurring:
The era banc majority opinion rests on two grounds: 1) a prima facie case of disparate treatment permitting an inference of racial discrimination had not been made out and 2) if made out, nevertheless, the district judge, acting under Fed.R. Civ.P. 41(b), was empowered to find, as an ultimate fact, that discrimination had not taken place, i.e., that the prima facie case had been successfully rebutted.
On that second ground I concur. However, ground no. 1 is not necessary for decision 3 and, as a dictum for which I perceive the support to be questionable, should not, I submit, be relied on, especially in an era banc opinion engaging all members of the Court on regular active service.
I am authorized to say that PHILLIPS, J., joins in this opinion.
. Cf. Eastern Associated Coal Corp. v. Director, Office of Workers’ Compensation Programs, 791 F.2d 1129, 1131 (4th Cir.1986) (in circulation) (“We decline to address these issues because they do not affect the outcome of this case.”).