Edgar L. BURNETT, Plaintiff-Appellant, v. CHICKASAW AREA DEVELOPMENT COMMISSION, Defendant-Appellee

JONES, Circuit Judge,

concurring in part and dissenting in part.

Edgar L. Burnett, a black male, filed this employment discrimination ease under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. against his former employer, the Chickasaw Area Development Commission (CADC). The district court held that though Burnett established a prima facie case of discrimination, the CADC articulated legitimate, nondiscriminatory reasons for Burnett’s discharge and for the CADC’s failure to consider Burnett for certain positions. In its decision today, the majority of this panel affirms the judgment of the district court in its entirety. I concur in the majority’s opinion insofar as it holds that the CADC stated legitimate nondiscriminatory reasons for its employment decision respecting Burnett’s discharge and Burnett’s rejection from the Head Start positions. However, I dissent from the majority’s holding, in effect, that the CADC’s failure to consider Burnett for cannery supervisor may not be actionable. I would reverse the district court on this latter issue and remand the case to the court to determine why the CADC refused to consider Burnett for cannery supervisor.

I.

The CADC is a private, nonprofit Tennessee Corporation which was formed on Janu *1216 ary 1, 1972, pursuant to the Economic Opportunity Act of 1964, as amended, 42 U.S.C. § 2701 et seq. As such, the CADC organizes and administers so-called “antipoverty” programs in western Tennessee. Like its predecessor, the Shiloh Area Development Corporation (SADC), the CADC’s sole source of funding is the federal government. These funds are channeled through the State of Tennessee.

Burnett, a former employee of SADC from 1965 to 1971, was employed by the CADC as the emergency food and medical director. During Burnett’s tenure at SADC, he also served as an agriculture specialist and an equal employment officer. Prior to 1965, Burnett taught in and administered public schools in Tennessee for over thirty years.

As the CADC’s emergency food and medical director, Burnett was responsible for the administration of the CADC’s only cannery. His duties included the distribution of seeds and the administration of funds. His responsibilities included the supervision of O’Neal Deming, a white male and the cannery operator. Burnett had previously supervised Deming’s job performance in the cannery operation at SADC.

On June 7, 1972, the CADC notified Burnett that effective June 30 of that year his position as emergency food and medical director would be terminated for lack of funding. Burnett was offered the job of cannery operator (Deming’s position) at a substantially lower salary. Burnett refused the offer because he believed the job to be seasonal. Between June 7 and June 30, 1972, the CADC decided to open additional canneries. On July 1, 1972, the day after Burnett’s termination, the CADC promoted Deming to the new position of cannery supervisor. The CADC conceded in its pleadings that Burnett was not considered for cannery supervisor. Nor was the supervisor position advertised in accordance with the CADC’s established policy. Additionally, Burnett was not apprised of the position until a year after his discharge. Once Deming’s promotion became effective, the CADC paid for Deming to attend canning processing school. Furthermore, Deming’s salary for the supervisor position was paid with federal funds administered by the state. 1

Soon thereafter, the CADC advertised the position of Head Start Director. On July 18, 1972, Burnett applied for that position and on August 2, 1972 he was notified that he had been rejected. A black female was selected. When the Head Start Director became seriously ill, the CADC appointed a white female Acting Head Start Director without advertising for other applicants.

On August 12, 1976, Burnett filed his complaint in the district court alleging employment discrimination based on race, in violation of Title VII and 42 U.S.C. §§ 1981 , 1983 and 1985. Burnett contended (1) that his discharge from the CADC violated Title VII and (2) that the CADC’s failure to consider him for certain supervisor and Head Start positions constituted unlawful disparate treatment. The district court held that the statute of limitations barred the § 1983 causes of action. After a trial on the merits on September 19, 1978, the district court held that Burnett failed to prove employment discrimination on account of race with respect to his discharge or the CADC’s failure to employ him as cannery supervisor or in the Head Start positions. The district court held, in effect, that even if Burnett established a prima facie case of disparate treatment under Title VII, the CADC successfully rebutted the presumption of discrimination by articulating “legitimate, nondiscriminatory reason[s]” for its decision to discharge Burnett and its refusal to offer him the other positions.

*1217 II.

The basic allocation of the burden of proof in Title VII employment discrimination cases was initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, and its progeny, the Title VII plaintiff bears the burden of establishing a prima facie case of disparate treatment. “The plaintiff must prove by a preponderance of the evidence that [he or she] applied for an available position, for which [he or she] was qualified, but rejected under circumstances which give rise to an inference of unlawful discrimination. 2 Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1094 , 67 L.Ed.2d 207 (1981).

Once the plaintiff establishes the prima facie case, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the employment decision. McDonnell Douglas v. Green, supra, 411 U.S. at 802 , 93 S.Ct. at 1824 . The effect of this intermediate evidentiary burden is to require the employer to rebut the presumption of discrimination created by the establishment of the plaintiff’s prima facie case. Burdine, supra, 101 S.Ct. at 1094 . The employer successfully rebuts the presumption of discrimination when it “clearly set[s] forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.” Id. The employer’s explanation “must be legally sufficient to justify a judgment ...” in its favor. Id. Additionally, the employer “cannot meet its burden merely through an answer to the complaint or by argument of counsel.” Id., 101 S.Ct. at 1094 n.9. Moreover, the employer’s “explanation of its legitimate reasons must be clear and reasonably specific.” 3 Id., 101 S.Ct. at 1096 .

Finally, if the employer rebuts the presumption of discriminatory treatment, then the plaintiff “retains the burden of persuasion .... [The plaintiff] must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision .. .,” id., 101 S.Ct. at 1095 , but merely a pretext. Therefore, once the burden of proof shifts back to the plaintiff, the plaintiff has the “ultimate burden of persuading the court that [he or she] has been a victim of intentional discrimination.” Id.

Applying these principles, I would hold that the district court erred in holding that even if Burnett established a prima facie case of discriminatory treatment that the CADC effectively rebutted the presumption of discrimination.

A fair reading of the transcript of the district court’s oral disposition of the case 4 *1218 indicates that the court found that Burnett had carried the initial burden of proving a prima facie case of employment discrimination. I agree. Burnett was a member of a racial minority. His years as SADC and his relevant experience qualified him for the position of emergency food and medical director of the CADC and for the positions of cannery supervisor, Head Start Director and Acting Head Start Director. He was discharged from his former job as emergency food and medical director and rejected from the latter jobs of cannery supervisor and Head Start Director. His former position was abolished while other individuals were selected for the supervisory and Head Start positions.

Burnett argues that the district court erred in holding that the CADC articulated a legitimate nondiscriminatory reason for Burnett’s discharge. I disagree. As its reason for Burnett’s discharge, the CADC produced evidence of the termination of federal funding for Burnett’s position as emergency food and medical director. Burnett accurately points out that the CADC’s July 11, 1972 memorandum announcing Deming’s new position as cannery supervisor incorrectly stated that Deming’s salary would be paid through state emergency food funds when in fact the CADC’s antipoverty programs were funded entirely by federal monies administered through the State of Tennessee. Therefore, it appears that the federal monies utilized to compensate Deming could have been used to fund Burnett’s former position. Nevertheless, trial testimony of the CADC’s exécutive director and the director of finance and personnel indicates that the federal funds specifically set aside to pay Burnett’s salary as emergency food and medical director were withdrawn by the federal agency funding that program. Furthermore, at the time of this appeal, the CADC had not filled Burnett’s former position. This explanation satisfied the CADC’s burden of articulating a legitimate reason for Burnett’s discharge.

Burnett contends that he was the victim of disparate treatment in not being considered for the position of cannery supervisor while Deming was appointed to it. He contends that the district court erred by merely deciding that Deming was the “most qualified man” for the job without determining why the CADC did not consider Burnett for it.

I believe that the district court erred by not inquiring into the CADC’s failure to consider Burnett for the position of cannery supervisor. It is clear that the CADC had federal monies to fund the supervisory position. It is equally clear that contrary to established policy the CADC did not seek other qualified applicants for the position. Moreover, the position was not advertised in accordance with the policy of the CADC. Without a specific inquiry into the CADC’s reasons for not considering Burnett or anyone else, Burnett’s prima facie case of unlawful discriminatory treatment remained unrebutted. If Burnett was not considered for the position for racially discriminatory reasons, then the district court’s determination that Deming was the best qualified *1219 person will not justify judgment in the CADC’s favor. Consequently, I would remand the case to the district court to determine why Burnett was not considered. 5

I agree with the majority that there is no merit in Burnett’s contention that his rejection for the Head Start directorship constituted unlawful employment discrimination. Burnett applied for this advertised position and, after consideration of his qualifications, he was rejected. Similarly, Burnett’s arguments concerning the position of Acting Head Start Director are groundless.

Accordingly, I would affirm in part, reverse in part, and remand this case to the district court to determine why Burnett was not considered for the position of cannery supervisor.

. On July 11, 1972, the CADC issued a memorandum announcing Deming’s new position and indicating that it was funded by additional sums received from the state emergency food program. This memorandum was subsequently discredited by the testimony of the CADC’s executive director, Robert Vinson, who attested to the fact that the only funds the CADC utilized were federal monies administered through the State of Tennessee.

. This test was originally phrased by the Supreme Court to require the Title VII plaintiff to show “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas, supra, 411 U.S. at 802 , 93 S.Ct. at 1824 . In this respect, the Supreme Court has noted that the prima facie proof will vary as the underlying factual setting varies. Id. at 802 n.13, 93 S.Ct. at 1824 n.13. Furthermore, this initial burden is not meant to be onerous. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1094 (1981). Rather, the reason for allocating the burden of proof to the plaintiff in this manner is because “[t]he prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection,” id., i. e., “an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.” Teamsters v. United States, 431 U.S. 324 , 358 n.44, 97 S.Ct. 1843, 1866, n.44 , 52 L.Ed.2d 396 (1977).

. In Burdine , the Supreme Court recognized that this obligation “arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded ‘a full and fair opportunity’ to demonstrate pretext.” 101 S.Ct. at 1096 .

. Burnett contends that the district court erred by applying the constitutional theory of purposeful discrimination as set forth in Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). However, though the district court initially stated:

Now, I disagree with Mr. Cox’s argument to the extent that disparate treatment can cause this Court to grant the relief. And I am sorry I don’t know the name of the series *1218 of cases, but the Supreme Court and the Sixth Circuit have spoken to this recently by saying that even though an act of an organization or even a city creates a disparate relationship or treatment, unless it was intended in an unconstitutional manner the Courts should not intercede . .

it seems clear from the district court’s subsequent holding that the McDonnell Douglas reasoning supported the court’s final judgment. The district court concluded that:

[i]f this is a McDonnell Aircraft versus Green case, and I doubt that it is, I find that a prima facie case is made that he is a member of the minority race. The only possible problem you would have would be Mr. Deming, and I think the Defendant Corporation has explained why they hired him for that job. That was not the same kind of job that the plaintiff had, this was an active working job of setting up these canneries, not being a supervisor where you had a job where you didn’t have to do anything but pick up the time sheets, and also be aware and make known to the public the existence of this Cannery and promote it and things of that sort.

. This is my point of departure with the majority’s decision in this case. With respect to this supervisory position, the majority rests its decision on the fact that Burnett did not apply for the position. Unfortunately, in doing so, the majority’s decision suffers from several flaws. First, Burnett could not have applied for the supervisory position because the CADC failed to advertise it. The district court found that this failure to advertise was in direct contradiction of the CADC’s established policy to advertise internally and externally. The majority would hold Burnett accountable for the CADC’s failure to advertise. Second, the majority’s holding effectively overturns the district court’s determination that Burnett established a prima facie case of employment discrimination under Title VII concerning the supervisory position. See note 4, supra. In Bur-dine, the Supreme Court noted that prima facie proof varies with the underlying facts and that the establishment of a prima facie case was not meant to be onerous. See note 2, supra. The function of the prima facie case was to address the most common nondiscriminatory reasons advanced by employers — lack of qualifications and the absence of a vacancy. Id. Penalizing Burnett for his failure to apply for a position that he was not aware of due to the CADC’s refusal to advertise for qualified applicant does not serve this important function of the prima facie case. Third, if the CADC refused to consider Burnett for racially discriminatory reasons, then the majority’s condonation of the district court’s failure to inquire into the CADC’s refusal to consider Burnett leaves Burnett without legal or equitable redress for the violation of his statutory right to seek employment without being exposed to racial discrimination. Therefore, I believe that the majority’s decision today cannot be supported in law or fact.