Harold DeLESSTINE, Plaintiff-Appellee, v. FORT WAYNE STATE HOSPITAL AND TRAINING CENTER, Et Al., Defendants-Appellants

*137 PELL, Circuit Judge,

dissenting.

In this case, the majority opinion upholds a judgment to the effect that the state authorities had discriminatorily discharged the plaintiff in violation of Title VII. This means in this case, in the words of the majority opinion, that the record established that the employer had treated the plaintiff less favorably than others because of his race. The plain and simple fact is that the plaintiff was engaging in part-time consulting work for pay while drawing sick pay from the public treasury and this was the reason Dr. Ackerman articulated for the discharge, i.e., that this was conduct unbecoming a state employee.

I can think of no way of characterizing the being on the public payroll because of sick leave while not working but nevertheless performing compensated work in the private sector other than that of “unbecoming conduct.” It takes no hyperactive imagination to realize what an embarrassing position the hiring authorities would have been placed in if this had come to the attention of the media. It appears to me that the appearance of unbecoming conduct on the part of a public employee is almost as damaging to the image of good government as would be the actual fact of misconduct.

I regard it as immaterial that the type of work at the nursing home may have been of a less demanding nature than the employment at the state hospital. The state may have had no policy against “moonlighting;” I cannot tell from the record. It certainly, in any event, is an entirely different situation than the present one if a public employee has the capability of performing a second job and is being paid for both. Here he was not performing a second job but only a first job although being paid by the public while not working for it.

I fail to follow the logic of the majority opinion in its holding that the discharge was pretextual. The record is silent as to any discriminatory practices on the part of the appellants toward any employees because of race, color, religion, sex, or national origin. The finding of pretext dangles on the weak thread of the plaintiff’s not being well enough to return to his state job and contradictory testimony as to what one doctor said to another. Apparently, the majority makes the credibility determination as to the accurate reflection of this conversation. Elsewhere, however, in the majority opinion it is clear that the memorandum from Dr. Sirlin to Dr. Ackerman was subsequent to the determination already made, and properly so, that the discharge was justified by conduct unbecoming to a state employee. I see nothing conclusory or pretextual about guarding the public coffers from unwarranted criticism.

In short, the majority’s syllogism seems to be that plaintiff was a member of a protected minority class, that he was a competent employee with acceptable qualifications, that he was discharged because he was working on another job while on sick leave, ergo, the reason given for his dis *138 charge was pretextual. The process ignores the fact that there was a legitimate nondiscriminatory reason for the discharge. What. Title VII is all about is to put a stop to discriminatory treatment of employees. The essential element of discrimination is missing here.

The plaintiff may well have been well qualified and when he was on the job he may have been an effective employee. The ultimate fact is that state authorities are branded as having engaged in discriminatory conduct in violation of a federal statute, notwithstanding, as the majority opinion observed, “the appellants did in fact seek ‘minority’ applicants."

This record does not justify that stigma. The appellants did what public officials properly should have under the circumstances here involved.

With all due respect to the majority opinion, and to the then district court judge, I would reverse with direction to enter judgment for the defendants. For the reasons stated above, I respectfully dissent. *

I note the comments in the majority opinion regarding my dissent. Of course, the seeking of minority applicants will not preclude the existence of discriminatory treatment of a single individual. It is, however, a significant factor in a record which is devoid of evidence of racial discrimination. I do not regard a questionable finding that a post hoc exchange of correspondence really was only verisimilar on the part of Dr. Ackerman as a sufficient basis for saying that the discharge resulted from racial discrimination. An employer accused unjustly of discrimination unfortunately may tend to resort to unnecessary rationalization. This is an infirm basis for saying that there was indeed discrimination.