Hazel Hill v. Mississippi State Employment Service

ALVIN B. RUBIN, Circuit Judge,

dissenting:

Inefficiency is racially neutral. It cannot of itself account for racial discrimination. When a person establishes a prima facie case that a state agency has discriminated against her because of her race, I would not accept as a “legitimate nondiscriminatory” reason for the agency’s admitted difference in treatment between her and the members of another race that the ineptness of its employees, the inadequacy of its budget, the size of its system, or the bureaucratic nature of the machinery it has devised suffice to negate the discriminatory animus manifested by the decisions, at least partially subjective, that its own employees have made.

The Mississippi State Employment Service is not a disembodied entity on high that functions independently of its employees. It is itself the deus ex machina that puts the actors on the stage and directs them. The allegedly inefficient, regulation-hamstrung, overworked employees whom it has hired and through whom it functions are the MSES. It may not wash its hands of the spots, whether damned or merely discriminatory, by which their actions have stained the MSES. Indeed were its employees merely inefficient, their actions would not have resulted in racial discrimination, for inefficiency would function as much to hamper white as minority applicants in seeking jobs. Yet MSES’s actions in fact put stumbling blocks in Ms. Hill’s path that were not placed before the paths of white job applicants.

In addition to my inability to accept the proffered excuses as legitimate reasons for the nonreferral of black applicants, I would find the magistrate’s findings of subsidiary fact as to pretext clearly erroneous, and I would find that Hill has established a viola *1242 tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Fair Employment Practices Act, by disparate treatment. I therefore respectfully dissent from the majority opinion without reaching the disparate impact or retaliation claims.

I. Disparate Treatment

The Act forbids racial, religious, and sexual discrimination in employment. In McDonnell Douglas Corp. v. Green 1 the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” 2 Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. 3 To fulfill its duty of articulating a legitimate non-discriminatory reason, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. 4

The magistrate found, and the majority opinion affirms, that Hill established a pri-ma facie case of racial discrimination. The evidence of such discrimination was not merely statistical. From April 1982 to April 1983, the period in which Hill contends she was a victim of discrimination, she sought employment as a waitress or a cashier partially because she could earn more than the minimum wage usually paid fast-food restaurant counter attendants (who, because they not only accept and deliver orders but receive payment are sometimes denominated “cashiers”). As the majority opinion indicates in a footnote, 5 on several occasions during the period when Hill sought employment as a cashier or waitress MSES demonstrated an unusual pattern of referrals of applicants for the position of cashier.

Case 1. MSES referred 22 whites for interviews for employment as cashier, of whom 5 were hired. It did not refer a single black applicant. Ten of the 22 whites were “out of code,” meaning that “cashier” was not their primary prior occupation and three did not even meet the minimal experience criterion established by the job order. Two had no experience and five lacked the requisite education. “While the order remained open, Hill, who admittedly would have qualified for the job,” the majority opinion concedes, “sought referrals, though not specifically asking for this position,” 6 as indeed she could hardly have done unless she had specific knowledge of the job order. Instead, “during the period that this order remained open and Hill sought referrals,” the MSES did refer her to what it calls “alternate positions,” 7 all of them stereotypical for black persons in the deep south: to a motel as a “housekeeper,” an euphemism for a maid; to two fast-food chains, Church’s and Kentucky Fried Chicken as a “cashier”, and to another as a counter helper. These were in effect jobs making beds or serving fried chicken. It scarcely bears mention that MSES does not contend that Hill was unqualified in any way for the job to which only whites were referred.

*1243 Case 2. An order for cashiers requesting ten referrals remained open for five weeks. MSES referred only five applicants, four of whom were white. Neither Hill nor any other putatively qualified black was referred for the remaining five interview slots.

Case 3. “[A] job order for emergency room technicians, also open while Hill sought referrals, requested five applicants. MSES referred only one white woman, out of code. Hill, who previously worked at a hospital, was not referred.” 8 MSES does not contend that Hill’s prior hospital experience did not qualify her for at least an interview with the employer, who requested four more persons for interviews than the number actually referred.

Case 4. One day after she had filed her EEOC complaint, Hill again sought a job referral as a waitress. Instead she was referred to a Ramada Inn as a “housekeeper.” Upon arrival she found that the Inn had filed a request for a waitress with the MSES. “That same day, at the direction of Hill’s attorney, a white female employee of a legal services organization sought referrals for waitress jobs with MSES, and the clerk, different than [sic] the clerk with whom Hill spoke [sic], provided her two waitress referrals.” 9

We, as well as other courts, have recognized that subjective selection processes tend to facilitate the consideration of discriminatory criteria. 10 While the MSES admits that the employees with whom Hill had spoken did use subjective criteria as well as job codes in making referrals, the job referrers denied racial considerations in referral selection. Instead, the MSES and its employees presented a united front: the problems merely reflected employee error. The coincidence of such employee error consistently operating to the detriment of Hill strains credulity. A cashier may sometimes be “short,” that is, she may sometimes turn in less cash than her register records, but if this is due to error, then she ought also, at least on some occasions, to be “over,” having more cash than the register records. There is reason to suspect the employee who is always short and never over. Moreover, Hill’s statistical expert testified to a significant statistical deviation in referring blacks. Even the MSES’s statistical expert conceded that Hill’s data demonstrated that the MSES system has a statistically significant disparate effect on black applicants, although he rejected the magnitude of the measure.

The majority refers to.the MSES “system” as racially neutral. But verbal neutrality does not suffice to explain discrimination in application. The MSES has not shown a single instance in which its inefficient system favored black employees or in which the failure to refer employees to jobs resulted from difficulty in reaching Hill— or from overwork — or from red tape. Presumably so inefficient a system would sometimes result in the neglect or oversight of white applicants. The evidence shows that the MSES system is inefficient only when it fails to refer black employees.

II.

The majority opinion does not even attempt to define what is meant by a legitimate nondiscriminatorv reason. It contents itself with the conclusion that an employer’s inefficiency, limited budget, self-manufactured red tape, and the excessive work load it places on its own employees, suffice. I submit that none of these alone nor all together constitute legitimate reasons for discrimination. Surely the word “legitimate” must mean more than simply non-criminal or not forbidden by law, for we would not as a matter of course accept either a criminal act or one otherwise forbidden by law as sufficient to justify discrimination. Instead, a “legitimate” reason must be one that is justifiable in view *1244 of the purposes of the Fair Employment Practices Act.

The Supreme Court has given support to this interpretation, stating that “[t]he broad overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and ... neutral employment and personnel decisions.” 11 A legitimate reason must be in some degree related to job efficiency, the employer’s needs, or the applicant’s qualifications. That, to me, is implicit, though never expressed, in Texas Department of Community Affairs v. Burdine, 12 Oversight of an applicant is not a legitimate reason, for, like inefficiency, it does not serve any justifiable employment purpose. Thus, in Roberts v. Gadsden Memorial Hospital 13 the employer responded to a prima facie case of disparate treatment by claiming that he had simply never considered Roberts for the available position and therefore could not have been guilty of discriminatory intent. Instead, he had hired someone with whom he was friendly on a social basis. The court held that the employer’s failure to consider Roberts was itself disparate treatment and therefore could not constitute a defense:

where ... an employer has reason to know that an employee is qualified for a position and that the employee might desire to be considered for that position, the employer’s failure to consider the employee for promotion is not a legitimate, nondiscriminatory reason sufficient to rebut an inference of intentional disparate treatment. 14

Cant by an employer and homilies against discrimination delivered to its employees do not suffice to explain the discriminatory effect of its employees’ practices. If its employees’ actions result in racial discrimination, their malfeasance is not sufficient to rebut the inference of racial discrimination already demonstrated by the plaintiff in establishing her prima facie case. The MSES is itself responsible for its employees’ actions.

The need for efficiency constitutes a defense in disparate-treatment cases. It would be ironic if the employer’s claim of its own inefficiency also served as a defense.

This ought to dispose of the defense to the disparate-treatment case. Even if it does not, I submit that the magistrate was clearly erroneous in concluding that the reasons advanced by MSES were not a pretext. The MSES, acting through its employees — the only way in which it could act — intentionally discriminated against Hill.

For these reasons, I would reverse the judgment, render judgment in Hill’s favor on her discrimination claims and remand the case to the district court to determine the appropriate remedy.

. 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973).

. Id., at 802 , 93 S.Ct. at 1824 .

. Id., at 804 , 93 S.Ct. at 1825 .

. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1094 , 67 L.Ed.2d 207 (1981).

. Majority opinion, fn 5.

. Id.

. Id.

. Id.

. Id.

. Roberts v. Gadsden Memorial Hospital, 835 F.2d 793, 798 (11th Cir.1988); Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 827 (5th Cir.1982); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1560 (11th Cir.), cert. denied, 479 U.S. 883 , 107 S.Ct. 274 , 93 L.Ed.2d 250 (1986).

. McDonnell Douglas, 411 U.S. at 801 , 93 S.Ct. at 1823 .

. 450 U.S. at 248 , 101 S.Ct. at 1089 .

. 835 F.2d at 793 .

. Id. at 798 . But see Gaballah v. Johnson, 629 F.2d 1191 (7th Cir.1980).