The opinion
EDMONDSON, Circuit Judge,
dissenting.
I have the bad luck to disagree with my colleagues about this case. And, I need to protest a judgment that I am pretty sure is neither commanded by the law nor right. 1
Whether a company will staff itself with full-time employees, part-time employees, independent contractors or some mix is a core business decision. Nothing in Title VII obligates a company to choose one work force or another; and the different kinds of work forces present different advantages and disadvantages for business management. In this ease, AAA Plumbing decided to contract out its need for janitorial service as opposed to having the work done, as it had been done, by a full-time employee. AAA says the decision to use an independent contractor was motivated by a desire to cut costs: a legitimate business reason. (The decision, according to the district court, was cost-effective for AAA.)
*1030 In the light of AAA’s decision to use an independent contractor for its janitorial service needs, the person — an African-American — who had been employed by AAA as a janitor was let go. There is no proof or contention that he was qualified for any other available job that AAA had then. Under our precedents, this fact should have ended the matter. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082-83 (11th Cir.1990) (in reduction-in-foree case, plaintiff “must show that he was qualified for another available job with that employer; qualification for his current position is not enough”). No Title VII violation was proved.
But, the district court and this court now say that the law requires an employer to create a new job category — part-time employee for janitorial services — to “accommodate” the man who was let go. I do not think so, especially since no evidence in this ease shows that AAA had a custom of abolishing full-time jobs and then creating part-time jobs to accommodate whites. 2
I agree with Mr. Justice Holmes: “[T]he most enlightened judicial policy is to let people manage their own business in their own way, unless the ground for interference is very clear.” Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 411 , 31 S.Ct. 376, 386 , 55 L.Ed. 502 (1911) (Holmes, J., dissenting). See generally Furnco Construction Corp. v. Waters, 438 U.S. 567, 578 , 98 S.Ct. 2943, 2950 , 57 L.Ed.2d 957 (1978) (“Courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.”), Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 661 , 109 S.Ct. 2115, 2127 , 104 L.Ed.2d 733 (1989) (“the judiciary should proceed with care before mandating that an employer must adopt a plaintiffs alternate selection or hiring practice”).
The district court and this court seem to think that Title VII requires employers to offer minority employees an opportunity to “match” an outside independent contractor’s price for the work, before the employer may contract the work out lawfully. This law is new to me. Where does it come from? It is unexpected, and it hits hard at management’s traditional right to run a business as management thinks best. 3
No amount of repeating the mantra “flexibility” justifies such judicial interference with a business. Judicial power to interfere with a private business is rigidly limited by the law. Mitchell v. Worldwide Underwriters Insurance Co., 967 F.2d 565 (11th Cir.1992), and the other cases cited by today’s court have nothing to do with creating different jobs or restructuring work forces — including a change from full-time employees to part-time employees — to “accommodate” employees who are discharged for nondiscriminatory reasons. None of Title VTI’s provisions empower the courts to force businesses to be nice to their employees. The legal basis for interfering with AAA Plumbing is, to say the least, unclear.
I would reverse the district court’s judgment.
. In general, I — like many judges — think it is, given the needs and goals of the law and this court, useless and undesirable to express dissent, even when I believe a decision is clearly wrong. I do dissent now and briefly set out my reasons because I think today’s judgment is unusually important or, at least, may in time come to be seen as having an unusually important effect.
. Even if an isolated instance like Frank Mabry's might otherwise count for something, Mabry's circumstances are in no way like Sammy Wilson's. For example, Mabry's job was not abolished for business reasons.
. The district court's fact finding on discrimination is hard for me to follow. At one point, the court says: "This court cannot conclude that plaintiff was a victim of intentional discrimination with regard to the decision in 1990 to abolish his job.” Later the district court wrote that it did not intend to hold there was no discrimination in the decision to use an outside contractor to do the janitorial work. The district court then finds discrimination, but I believe the fact finding is undermined by legal errors. The discrimination found was based on the failure of the company to offer Wilson the chance to be a part-time employee and match the independent contractor’s price. Because AAA had no duty to make such an offer, the failure to do so cannot be racially discriminatory, particularly given the absence of a custom of making like offers to whites. Fact finding based on an incorrect application of law is not binding on this court. Inwood Laboratories v. Ives Laboratories, 456 U.S. 844 , 855 n. 15, 102 S.Ct. 2182 , 2189 n. 15, 72 L.Ed.2d 606 (1982).