Frances WEEMS, Plaintiff-Appellant, v. BALL METAL AND CHEMICAL DIVISION, INC., Defendant-Appellee

NATHANIEL R. JONES, Circuit Judge,

dissenting.

I am unable to agree with the views of the majority.

As the majority notes, the sole question presented on appeal is whether the magistrate’s findings are clearly erroneous. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 541 , 92 L.Ed. 746 (1948); see also Kennedy v. Commissioner, 671 F.2d 167, 174 (6th Cir.1982) (citing United States v. United States Gypsum Co., 333 U.S. 364 , 68 S.Ct. 525 , 92 L.Ed. 746 (1948)). Appellate review of the magistrate’s conclusions of law, however, is not controlled by the ‘‘clearly erroneous” rule. Instead, this Court may freely review the magistrate’s legal conclusions, ultimate findings of fact, and mixed questions of fact and law. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 143 , 143 n. 19 (6th Cir.1983).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), and in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 , *531 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981) the Supreme Court set out a tripartite scheme of proof allocation for Title VII cases. As applied to the instant case, that scheme is as follows. First, Weems had to establish by a preponderance of the evidence a prima facie case of employment discrimination. McDonnell Douglas Corp., 411 U.S. at 802 , 93 S.Ct. at 1824 ; Burdine, 450 U.S. at 252-53 , 101 S.Ct. at 1093 . Second, because establishment of that prima facie case created a rebuttable presumption of unlawful discrimination and shifted the burden of production to Ball Metal, Ball Metal had to articulate legitimate, nondiscriminatory rationale for Weems’ discharge. McDonnell Douglas Corp., 411 U.S. at 802 , 93 S.Ct. at 1824 ; Burdine, 450 U.S. at 253 , 101 S.Ct. at 1093 . Third, because that mere articulation shifted the burden of production back to Weems, she had to show by a preponderance of the evidence that Ball Metal’s articulated, legitimate, nondiscriminatory rationale was pretextual. McDonnell Douglas Corp., 411 U.S. at 804 , 93 S.Ct. at 1825 ; Burdine, 450 U.S. at 253 , 101 S.Ct. at 1093 . The burden of persuasion, however, never shifted from Weems to Ball Metal. Burdine, 450 U.S. at 253 , 101 S.Ct. at 1093 .

Although proof of a prima facie case differs with the facts, McDonnell Douglas Corp., 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, Weems could have established a prima facie case either under a theory of disparate treatment, disparate impact, or both. See Chrisner v. Complete Auto Trans., Inc., 645 F.2d 1251, 1257 (6th Cir.1981). Weems elected to establish her prima facie case of Ball Metal’s gender and racial discrimination under a disparate treatment theory. The magistrate, however, did not determine whether Weems successfully established that prima facie case. Instead, the magistrate found that Ball Metal disparately treated Weems because of her “repeated poor performance,” but not because of Weems’ sex or race. As a result of that finding, the magistrate concluded that Weems failed to meet her burden of persuasion regarding pretext.

Weems’ burden of showing pretext is simply one of showing that Ball Metal’s articulated rationale was not the true rationale for her discharge. Weems could have met that burden by demonstrating that a discriminatory reason predominated over Ball Metal’s articulated legitimate reason or by undermining the credibility of Ball Metal’s articulated legitimate reason. To meet that burden Weems could have used the following three categories of evidence to prove pretext: (1) direct evidence of discrimination, such as discriminatory statements or admission; (2) comparative evidence; and (3) statistics. Weems, however, did not introduce statistics into evidence. Instead, she relied primarily upon comparative evidence of discrimination. A review of that evidence is appropriate in relation to the ten reasons that Ball Metal enumerated as examples of why Weems’ work was “unsatisfactory and not acceptable.”

First, I cite Ball Metal’s enumeration of the following examples of Weems’ performance as support for its conclusion that her work was “unsatisfactory and not acceptable.”

1. [a]llow[ed] unnecessary amounts of battery can overflow to accumulate;

2. [a]llow[ed] the line to back up when other people are assigned to help catch up the overflow;

3. [p]ut no extra effort into the job when the situation require[d];

4. [m]a[de] unnecessary messes around work area and ma[de] no effort to help keep neat;

5. [l]e[ft] work area to visit with other employees whether her work is caught up or not;

6. [had a p]oor attitude toward the company, supervision, union and fellow employees;

7. [c]all[ed] fellow employees bad names in presence of others;

8. [c]ontinu[ously] grip[ed] and complain[ed] about practically everything and everybody on the job;

9. [did] not get along or make an effort to get along with the majority of people;

*532 10. [was the subject of] numerous complaints ... [of] fellow employees [who said] they were tired of doing their jobs and her job too.

Second, I submit that those examples were rebutted by Weems’ comparative evidence, which was produced from the testimony of Joyce Fletcher, a white female relief inspector, Doyle Smith, a Black man who worked as a packer for a short period of time in 1979, Grady Black, Jr., McCam-ey, Weems’ supervisor, David Douthat, and, Pack. Fletcher stated that Weems “was a very clean person ... [who] kept her line clean.” In fact, in comparison to “people” on other lines, according to Fletcher, Weems was similarly clean. Fletcher, who had an opportunity to observe Weems’ attitude stated that, without an objection, Weems helped Fletcher to reduce her overflow, and that Weems worked “well.” Fletcher also stated that she had never heard her complain unduly, or use profane language. In fact, Fletcher stated that the men on the lines used profane language, but were never disciplined for that profanity. Although Weems had been disciplined for taking more time than allotted for breaks, for failing to completely fill out her work sheet, and for having an overflow above the normal amount of overflow, Fletcher noted that she had not been disciplined for those same problems.

Smith testified that both he and a Gary Treese, another black male who worked at Ball Metal had been subjected to criticism and discharge. It was suggested that the basis of the criticisms and discharges was racial. Smith indicated that he was discharged because a foreman claimed that he had been drinking. Also, he suggested that Treese was discharged for negative reasons; however, Smith did not state what those negative reasons were.

Black testified that Weems did her job, spent the appropriate amount of time on breaks, was not moody, griped no more than other workers, cursed lightly by saying the word “shit” infrequently and never using the word “goddamn.” Black also testified that Weems’ packer man, “Winifred, talked a lot.” In fact, according to Black, Winifred talked so much to other workers on other lines that Winifred only “stayed at his station some.”

Douthat testified that Weems was as clean as others who worked on the lines, usually in good humor, complained no more than others on the line, did her share of the work, and performed an unauthorized minor adjustment on a line machine.

Pack testified that Weems had helped him with his work, did a good job, spent less time away from the line than did other workers, was a jolly person, was as clean as other workers, took long breaks like everyone else,.repaired the machine like he had but unlike he was disciplined for the repair, and had an overflow like he had but unlike he was disciplined for the overflow. Pack also testified that Winifred talked a lot and played practical jokes on the job to the extent that he made it difficult for others on the job.

McCamey testified that although he chastized Weems for making an unauthorized repair on the line, Weems “got along” “alright” with others. McCamey also testified that he disciplined Weems only once about her work, had no occasion to warn her about the use of profanity, that discipline for the use of profanity occurred only when the profanity “got extremely bad,” and that inspectors usually failed to fill out the necessary paper work. McCamey, however, also testified that he had been involuntarily retired by Ball Metal, but that all supervisors tried to treat each worker alike.

Weems’ strongest comparative evidence, therefore, was produced from Fletcher’s testimony. Fletcher’s testimony regarding Weems’ use of profanity, however, was weakened by Grady’s and Black’s testimony. For example, Fletcher testified that Weems never cursed. Grady testified that Weems infrequently used the word “shit,” but never used the word “goddamn.” Black testified that Weems cursed lightly by using the word “shit” infrequently and never using the word “goddamn.” It is *533 possible, however, that Fletcher never heard Weems curse.

The strength of that conclusion is based upon the strong corroboration of Fletcher’s testimony by Douthat, Black, Grady, Pack, and McCamey. For example, all testified that Weems had a good attitude and that in comparison to the work of co-employees Weems’ work was equal. Moreover, Black, Grady, and Pack testified that in comparison to others Weems’ was clean, had normal overflow, and did a good job. Both Pack and Douthat noted Weems’ unauthorized repair of line machinery. Yet, Pack also noted that other workers had performed unauthorized repairs but were never disciplined for those unauthorized repairs.

As a result, Weems did meet her burden of pretext, since comparably situated white employees, whether female or male, were treated differently. That is, those comparably situated white workers were not disciplined for the same infractions of Ball Metal’s rules or policies for which Weems was disciplined. See Corley v. Jackson Police Dept., 566 F.2d 994 , 999-1000 (5th Cir.1978). That differential in treatment, I submit, does not suggest that Weems was discharged for “repeated poor performance” but instead because she was Black. For that reason, I am left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 541 , 92 L.Ed. 746 (1948). Weems was, in my view, subjected to discrimination on the basis of her race. I, therefore, conclude that the magistrate’s decision is clearly erroneous.