Petition — Smith v. Chrysler Corp.

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

FRANKLIN D. SMITH,

Petitioner,

Ve

CHRYSLER CORPORATION,

Respondent.

On Writ of Certiorari

To the United States Court of

Appeals for the Fifth Circuit

PETITION FOR CERTIORARI

JOSEPH H. KING, JR.

Attorney for Petitioner

967 Juniper Street, N.E.

Atlanta, Georgia 30309

(404) 881-1700

TABLE OF CONTENTS

TABLE OF AUTHORITIES

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDING

OPINIONS BELOW

JURISDICTIONAL STATEMENT

APPLICABLE STATUTORY PROVISIONS

STATEMENT OF THE CASE

JURISDICTION BELOW

ARGUMENT

IMPORTANCE OF GRANTING REVIEW

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

t--

14

15

TABLE OF AUTHORITIES

STATUTES

28 U.S.C. $1254(1).

28 U.S.C. §1343

42 U.S.C. §2000e, et seq.

CASE AUTHORITY

Furnco Construction Corp. v.

Waters, 98 S.Ct. 2943 (1978)

Garrett v. Mobil Oil Corp.,

531 F.2d 892 (8th Cir., 1976)

Jochum v. Schmidt, 570 F.24

1129 (5th Cir., 1978)

Kentroti v. Frontier Airlines,

Inc., 585 F.2¢ 967 (10th Cir.,

1978)

11,

ll

14

l2

ll

l2

McDonnell Douglas Corporation v.

Green, 411 U.S. 792, 93 S.Ct.

1817, 36 LEd2d 668 (1973) ee Pe

Marks v. Prattco, Inc., 607

Marshall v. Airpax Electronics,

Inc., 595 F.2d 1043 (5th Cir., 1979) le

Parsons v. Kaiser Aluminum Chemical

Corp., 575 F.2d 1374, 1383

(5th Cir., 1978) 12

Powell v. Syracuse University,

580 F.2d 1150 (2nd Cir., 1978) 11

Smith v. Liberty Mutual

Insurance Company, 595 F.2d 325

(5th Cir., 1978) 10

att)

QUESTIONS PRESENTED FOR REVIEW

In this employment discrimination case,

a basic and simple issue, and a related

procedural question, are presented:

(1) Must the plaintiff in an en-

ployment discrimination case

prove, as part of his "prima facie

case", the race of the individual

actually given the employment for

which he was rejected?

(2) Did the Court of Appeals err

in affirming the trial court's in-

involuntary dismissal of the

plaintiff's complaint prior to the

presentation of the defendant's

evidence?

PARTIES TO THE PROCEEDING

The only parties to the proceeding are

i those listed in the caption.

OPINIONS BELOW

The judgment of the Court of Appeals is

noted at 516 ¥.2d 566; no citation is yet

available for the order denying rehearing.

However, neither of the Court of Appeais'

Cpinions, nor either of the trial court

Opinions, is published.

JURISDICTIONAL STATEMENT

‘7 oO -

Jurisdiction is based on 28 U.S.C.

§$1254(1). The original judgment of the

Court of Appeals was rendered on April 18,

1980; a timely filed motion for rehearing

was denied by an order dated May 27, 1980,

but superseded by a "corrected copy" on

June 4, 1980.

APPLICAPABLE STATUTORY PROVISIONS

42 U.S.C. $2000e-2:

"(a) It shall be an unlawful employment

practice for an employer-

(1) to fail or refuse to hire or dis-

cnarge any individual, or otherwise to

discriminate against any individual with

respect to nis compensation, terms, con-

ditions, or privileges of employment,

because of such individual's race, color,

religion, Se€x, or national Origin; or

(2) to limit, Segregate, opr Classify

his employees opr applicants for employment

in any Way which would deprive op tend to

deprive any individual of employment Op-

portunities op Otherwise adversely affect

his status as an employee, because of

Such individual's race, color, religion,

S€X, or national Origin,"

STATEMENT OF THE CASE

On April 13, 1977, Franklin Smith

(having Satisfied the Jurisdictional

Prerequisites) brought this action in the

trial court, alledging employment dis-

Violation of Title VII of the Civil

Rights Act Of 1964, yo U.S.C, §$2000e, et

Seq. The case WaS called for trial on 26

April, 1979, and the plaintirr Called only

one witness, an employee of the defendant.1/

ee *.

ee

Additionally, the Plaintirfs, by his

Physical Presence in the courtroom,

sne record reveals that Franklin Smith,

@ black man, had been employed by

Chrysler Corporation as a parts picker at

its Atlanta Parts Depot for about 5

years, when he was discharged on January

26, 1975. He was not discharged because

of any deficiency in his job performance,

which was, admittedly, adequate, nor was

he discharged because of any reduction in

the force or general layorf. After his

discharge, other employees were hired in

his place. His attempts to reinstatement

proving fruitless, he brought this action

seeking reinstatement and back pay. As a

result of the discharge, he lost back pay

of approximately $12,408.60.

Franklin Smith, having presented that

evidence, rested. The defendant moved

for, and received, an involuntary dis-

missal; the plaintiff's motion for a new

trial was denied, and he appealed. The

U.S. Court of Appeals for the Fifth

Circuit affirmed the trial court's judg-

ment on April 18, 1980, and, on May 27,

19£9, denied a timely filed motion for

reiearing.

2

The turust of the rulings, both in the

trial court and in the Court of Appeals,

is that the plaintiff in a Title VII case

in order to prove a "disparate treatment"

prima facie case, needed to prove, as part

of that case, the race of the person ul-

timately hired for the position for which

he was rejected.

Jurisdiction in the trial court was pre-

Gicated on 42 U.S.C. §2000e-5, and 2%

U.S.C. $1343.

ARGUMENT

The issue in this case is very simple,

but it is also very important because the

Fifth Circuit (following dictum in one of

its earlier decisions) has placed an un-

warranted burden on plaintiffs in employ-

ment discrimination cases who preceed on

What is Known as the "disparate treatment"

theory.

The elements of this theory were first

enunciated by this Court in McDonnell

Douglas Corporation v. Green, 411 U.S.

~-

y 5 oe , ‘+ 9 ' 26 4 ‘ f. ¢

t{e9 3 3 a = WwW @ iV & > Jv oe ed oe bee 4 VY.

whis is what this Court saia in Green:

Tne complainant in a Title VII trial

must carry the initial burden under

the statute of establishing a prima

facie case of racial discrimination.

This may be done by showing (1) 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, de-

spite his qualifications, he was re-

jected; and (iv) that, after his

rejection, the position remained

open and the employer continued to

seek applicants for persons of com-

plainant's qualifications. [footnote

ommitted ]

411 U.S. at 802; 93 SCt. at 1824.

The McDonnell Douglas holding was re-

iterated in Furnco Construction Corp. Vv.

Waters, U.S. , 98 S.Ct. 2943 (1978). The

explanation in Furnco of the formulation

of the McDonnell Douglas prima facie case

is helpful:

A prima facie case under McDannell-

Douglas raises an inference of dis-

crimination only because we presume

these acts, if otherwise unexplained,

are more likely than not based on the

consideration of impermissible

factors. [cit] And we are willing

to presume this largely because we

Know from our experience that more

often than not, people do not act in

@ totally arbitrary manner, without

any underlying reasons, especially in

a business setting.

98 SCt. at 2949-2950.

So, properly applied, the McDonnell

Douglas scheme is very simple and

rational. The alleged discriminatee does

not have the impossible burden of proving

the state of the defendant's mind; rather,

by showing some very simple and objective

facts,,he can require the defendant to ar-

ticulate the reason for the adverse ac-

tion, thereby giving him a concrete target

for his "pretext" rebuttal. As this Court

recognized in Furnco, the re2l trial in a

non-frivolous case would normally relate

to the "pretext" rebuttal; only in the

rarest of circumstances would the employer

ct

ha rwtewry wntea erase

oo - o —

be unwilling to rebut prima vacie

by merely articulating a lexitirute reason

for his actions. So, in practice, tne

"prima facie case" concert is really

nothing more than an orderly way cf pre-

senting the relevant truth.

But the Fifth Circuit, requiring a

greater quantum of proof, has upset the

McDonnell Douglas scheme. It hes said that

the plaintiff must prove something more --

it held that part of the prima facie case

must include proof of the race of the

person hired to replace the plaintiff.

Specifically, this is what it said:

[The witness] stated that, after

the date on which Smith [the black

plaintiff] was discharged, others

were hired for the same job, but he

was not asked and did not state the

race of the replacing employees.

To prove a prima facie case of

Title VII racial discrimination and

discharging of employees, the persons

aggrieved must show that. . . (4)

after they were discharged their

empl-yer filled the positions with

nonminorities.[{] Marks v. Prattco,

inc., 607 F.2d 1153, 1155 (5th Cir.,

1979). Because Mr. Smith failed to

introduce any evidence tending to

prove the fourth element and pre-

Sented no evidence at all concerning

discrimination in work assignments,

the aistrict court was correct in

Gismissing for failure to establish a

The dictum quoted from Marks, however, was

not a correct statement of tne fourth

element cof a orima facie case Lit happened

in Marks, and undoubtedly often does, that

the replacement employee was shown to be a

nonminority, so the mis-statement in Marks

was pure dictum]. This is what tne fourth

element really is:

(iv) that, after his rejection, the

position remained open and the em-

ployer continued to seek applicants

froin persons of complainant's

qualifications.

McDonnell Douglas, supra, 411 U.S. at

482, 93 SCt. at 1824,

W@csced cases &259 SNOW tiiet proof that

the position was ultimately filiedi witn a

nonminority is not necessary. For ex-

ample, in Smith v. Liberty ‘utual JInsur-

ance vompany, 595 F.ed 325 (5th Cir.,

1978), the court stated that a prima facie

.

-10-

sex discrimination case had been shown,

where there was no showing of the sex of

the person actually hired. Similarly, in

Jochum v. Schmidt, 570 F.2d 1129 (5th

Cir., 1978), the court assumed that a

prima facie race discrimination case had

been made, where the black plaintiff had

been replaced by another black person. But

especially compelling is the decision in

Powell v. Syracuse University, 580 F.2d

1150 (2nd Cir., 1978) where the black

female plaintiff was held to have made out

a prima facie case of both race and sex

discrimination where the replacement

employee was a white female.

The fourth element was, of course, re-

iterated by this court in Furnco Con-

Struction Corp. v. Waters, supra, where a

prima facie case was held to have been

presented where there was no showing as to

the characteristics of those ultimately

hired. And, in any number of other cases,

it is clear that a showing of the char-

acteristics of those ultimately hired was

not necessary to the presentation of a

prima facie case. see, for example,

Garrett v. Mobil Oil Corp., 531 F.2d 892

WED

(8th Cir., 1976); Marshall _v. Airpax

Electronics, Inc., 595 F.2d 1043 5th

Cir., 1979); Parsons v. Kaiser Aluminum

Chemical Corp., 575 F.2d 1374, 1383 (5th

Cir., 1978).

The plaintiff's position :s the sensible

approach, even aside from the fact that is

mandated by the plethora of cases cited

above. As another court has noted,

A McDonnell Douglas prima facie

Showing is not the equivalent of a

factual finding of discrimination;

rather, it is simply proof of actions

by an employer for which discrim-

inatory animus may be inferred

[cit.]. And to dispel the adverse

inference from such a prima facie

Showing, the employer need only ar-

ticulate some legitimate nondis-

criminatory reason for his actions.

Kentroti v. Frontier Airlines, Inc.,

585 F.2d 967 (lOth Cir., 1978).

In other words, this concept of allocation

of burden of proof was formulated to focus

the attention of the trier of fact on the

«iP.

proper issue fo. decision. It embodied

the rather basic presumption noted above:

when an employer takes action adverse to a

competent minority employee, we can pre-

sume a discriminatory motive unless’ the

employer truthfully articulates a non-

discriminatory reason. This formulation

was made in response to a very practical

problem: employers who discriminate tend

not to say so. This sort of subjective

motivation is very difficult to prove

directly. However, it is easy to prove

indirectly, because, presumably, every

personnel decision made by an employer is

made for a reason, and this reason is ar-

ticulable. So, if an employer, given an

opportunity to articulate a truthful non-

discriminatory reason, does not do so, one

is compelled to presume that it

discriminated.2/

The showing (required by the 5th Circuit

opinion) that the replacement employee be

/

The Fifth Circuit, in denying rehearing,

also implied that the plaintiff had failed

to prove that he was not qualified for the

job; but it is clear from the record that

he was not fired because of any lack of

quality in his work.

jm

uh Be

a nonminority adds an extraneous element

to the McDonnell Douglas test, which can,

by mechanical application, lead to in-

correct results. An obvious example comes

to mind: it is quite conceivable that an

employer would seek to discharge outspoken

lacks, but tolerate outspoken whites and

quiet blacks. Its replacement of an out-

spoken black person with a quiet black

person under these circumstances would,

under the opinion below, be acceptable.

and yet, it is difficult to imagine a more

repugnant sort of discrimination.

IMPORTANCE OF GRANTING REVIEW

This Court is being asked to do much

more than merely reiterate standards al-

ready set in McDonnell Douglas and Furnco.

It has a chance here to eliminate appar-

ently considerable doubt as to what con-

stitutes a prima facie case. Even aside

from the ruling below, the reporters are

filled with decisions in which either’ the

district court, the appellate court, or

both, was confused as to whether a prima

facie case had been made -- and this con-

fusion invariably detracts from the focus

a,

on the ultimately-decisive issue.

CONCLUSION

The writ of certiorari should issue, and

the judgment below should be reversed.

er —7) ~ hk

EPH H. KING, SR?

torney for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that I have this day

served opposing counsel with three copies

of the foregoing by mail.

This 29th day of June, 19

EPH

» th.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-3559

Summary Calendar*

FRANKLIN D. SMITH,

Plaintiff-Appellant,

verses

CHRYSLER CORPORATION,

Defendant-Appellee.

Appeal from the United States District

Court for the Northern District of Georgia

(April 18, 1980)

Before GEE, RJBIN and POLITZ, Circuit

Judges.

PER CURIAM:

Mr. Franklin D. Smith was a black

employee of Chrysler Corporation at its

-Al-

Atlanta Parts Depot. In January, 1975, he

was discharged. He now charges that his

work assignments at the Atlanta Parts

Depot and his eventual discharge were the

result of racial discrimination. The case

was tried on April 26, 1979. After plain-

tiff rested, the trial court dismissed his

Suit on the basis that the evidence he

presented did not support any inference of

discrimination and that, therefore, it did

not establish a prima facie case. Finding

that the conclusion of the trial court was

warranted by the lack of evidence, we

affirm.

Mr. Smith called only one witness,

Primm, the manager of Chrysler's parts

depot. Primm gave no testimony about dis-

crimination in work assignments. Primm

did testify that Smith was employed at the

depot until about January 15, 1975, that

Smith was not discharged because of unsat-

isfactory job performance and that there

was no general layoff or reduction of the

workforce at fhe depot at the time of

Smith's discharge. Primm was not asked

the reason for the discharge. He stated

that, after the date on which Smith was

-A2-

discharged, others were hired for the same

Job, but he was not asked and did not

State the race of the replacing employees.

To prove a prima facie case of Title VII

racial discrimination in the discharging

of employees, the persons aggrieved must

Show that "(1) they are members of a pro-

tected minority; (2) they were qualified

for the jobs from which they were dis-

charged; (3) they were discharged; and (4)

after they were discharged their employer

filled the positions with nonminorities."

Marks v. Prattco, Inc., 607 F.2d 1153,

1155 (5th Cir., 1979). Because Mr. Smith

failed to introduce any evidence tending

to prove the fourth element and presented

no evidence at all concerning discrimin-

ation in work assignments, the district

court was correct in dismissing for fail-

ure to establish a prima facie case.

The opening statement of counsel showed

familiarity with the requirement that the

aggrieved person make out a prima facie

case. Counsel indicated that he would

present a prima facie case of racial

«Be

discrimination, wait for Chrysler to offer

evidence that the discharge was justified

and then prove the lack of justification

in rebuttal. After the plaintiff rested,

the motion to dismiss was argued, based on

his failure to prove a prima facie case.

Mr. Smith's counsel said he had consulted

with his client and relied only on the

argument that enough evidence had been

adduced. No more evidence was proffered

and no effort was made to ask for an

Opportunity to adduce more, despite the

court's offer to allow counsel to reopen

his case. Instead, counsel said, "I think

that the plaintiff is going to stick by

his guns on his earlier position."

The gauntlet was flung on the _ legal

issue. Finding the trial judge's

conclusion on it correct, we AFFIRM.

AFFIRMED.

-Ad-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-3559

FRANKLIN D. SMITH,

Plaintiff-Appellant,

verses

CHRYSLER CORPORATION,

Defendant-Appellee.

Appeal from the United States District

Court for the Northern District of Georgia

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion April 18, 1980, 5 Cir., 1980,

F.2d ).

(May 27, 1980)

Before GEE, RUBIN and POLITZ, Circuit

Judges.

SS.

PER CURIAM:

The application for rehearing raises the

issue whether the criteria for a prima

facie test of discrimination in hiring set

forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 8.Ct. 1617, 36 ULeEd.2d

668 (1973), referred to by us in Marks v.

Prattco, Inc., 607 F.2d 115 (5th Cir.,

1979), should be applied without further

modification to a discharge case and

whether these criteria state the sole way

to prove a prima facie case. The Mc-

Donnell Douglas test was applied to a

discharge contested under the Age Dis-

crimination in Employment Act of 1967, 29

U.S.C. §§ 621-634, in Loeb v. Textron,

Inc., 600 F.2d 1003, 1012 (lst Cir.,

1979). The court said:

"To apply the above concept in the

present case, which involves firing,

not hiring, the critical elements

(beyond being within the protected

class, i.e., age 40-65, and fired)

must be modified to produce an

analogous inference. Complainant

would be required to show that he was

-A6-

"qualified" in the sense that he was

doing his job well enough to rule out

the possibility that he was fired for

inadequate job performance, absolute

or relative. See Teamsters, 431 U.S.

at 358 N.44, 97 S.Ct. 1843. He would

also have to show that his employer

sought a replacement with qualifi-

cations similar to his own, thus dem-

onstrating a continued need for the

same services and skills. Without

proof along these lines, the concep-

tual underpinnings of McDonnell

Douglas would not remain recogniz-

able. Proof beyond this, however, is

not mandated by McDonnell Douglas,

and does not fit its conceptual un-

derpinnings as described in Furnco

and Teamsters. A correct statement

of the elements of a MeDonnell

Douglas prima facie case, adapted to

present circumstance, therefore would

have been that Loeb had to prove that

he was in the protected age group,

that he was performing his job at a

level that met with his employer's

legitimate expectations, that he

nevertheless was fired, and that

se

Speidel sought someone to perform the

Same work after he left."

It was not necessary in Marks for us_ to

go beyond the criteria listed because we

found a prima facie case established. Cf.

Ramirez v. ..oss, 615 F.2d 163, 168 n.9

(5th Cir., 1980) (Marks criteria are not

the only way to establish prima facie case

of discriminatory discharge). It may

well be that the formulation in Loeb would

be adopted in an appropriate case. How-

ever, even by this test the plaintiff's

proof was not enough. The plaintiff off-

ered no evidence that he was performing

the job at a level that met his employer's

legitimate expectations. He proved only

that he was black, had been discharged and

that this was not, so far as _ the depot

manager knew, for poor job performance or

as a result of a reduction in force. The

plaintiff carefully refrained from askirsg

the depot manager (the sole witness

called) whether he had been discharged for

any other reason, however sound, and from

offering testimony that his service as an

employee met a satisfactory level.

-A8-

The application for rehearing ae

therefore, DENIED.

No member of this panel nor judge in

regular active service on the court having

requested that the court be polled in re-

hearing en banc, Fed. R. App. P. 35; Local

5th Cir. Rule 16, the suggestion for re-

hearing en bane is DENIED.

-A9-

NT te TAT Tres CMA Mra r cms Tg | _ rf Pies

IN THE UNITED wt ALO “me oy ee a Ws weliae

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PUT BE Ya NORTHERN oe ee bee YY \ ’ MOUN SAA

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FRANKLIN D. Oilitinm, }

Plaintiff,

Ma

lye

Civil Action

C77-5874

)

Vs. )

)

CHRYSLER CORPORATION, )

)

Defendant. )

ORDER

This civil action is brought pursuant to

42 U.S.C. §$2000(e), et seq., charges’ the

defendant, Chrysler Corporation, with ra-

Cilal discrimination gainst the plaintiff,

a olack former employee of Chrysler Cor,-

Oration. “ne plaintiff's complaint essen-

ee a pina wae oceu." \ m= wy eo 194 @b

-S2iLiv charges unrysler Vvlorporation with

"mo 451 1 sropptorn? y mo & 4 Ay 4, a) ,ee 8 wwe we mm

a + ~~ & dei Se ey- Be bOF] oe bb 7. Aw WS cess . /-

work at its s#*lanta Parts Depot, and with

racial discrimination in the termination

of the plaintiff's employment on or about

January 17, 1975.

-Al10-

This case was tried by the Court without

a jury on April 26, 1979. In attempting

to establish a prima facie case of’ racial

discrimination, the plaintiff presented

Only the testimony, on cross examination,

of Mr. H.L. Primm, Manager of Chrysler's

Atlanta Parts Depot, and Plaintiff's Ex-

hibit No. 1, a seniority listing of hourly

paid employees dated November 1, 1974,

Though Plaintiff's Exhibit No. l was iden-

tified by Mr. Primm, it was never offered

or accepted into evidence.

After concluding his cross examination

of Mr. Primm, the plaintiff's counsel

rested his case. Counsel for tne defen-

dant then moved for an involuntary dis-

missal pursuant to Rule 41l(b) of the

Federal Rules of Civil Procedure on the

ground that the plaintiff nad not estab-

lished a prima facie case entitling him to

relief for racial discrimination. After

hearing the argument of counsel respecting

Chrysler's motion for involuntary dismis-

Sal the Court announced its intention to

grant Chrysler's motion. The Court, how-

ever, advised plaintiff's counsel that it

would allew the plaintiff to reopen his

-All-

case and present additional evidence to-

ward the establishment of a prima facie

case of racial discrimination. At the

Court's suggestion a brief recess was

taken to afford plaintiff's counsel tne

Opportunity to consider reopening the

plaintiff's case and presenting additional

evidence. When the trial was resumed

plaintiff's counsel declined to reopen the

plaintiff's case,and the Court granted

Chrysler's motion for involuntary

dismissal.

In granting Chrysler's motion for in-

voluntary dismissal, the Court adopts’ the

following findings of fact. The plaintiff

belongs to a racial minority. The plain-

tiff was discharged from his employment.

The plaintiff was not discharged on the

basis of his job performance.

since the Court finds that the plaintiff

failed to establish a prima facie case of

racial discrimination, it is ecually im-

portant to note here what the plaintiff's

evidence did not show. Though the employ-

ment vacancy created by the plaintiff's

discharge was subsequently filled, the

-Al2-

plaintiff introduced no evidence indicat-

ing tnat he reapplied for employment or

indicating the race of the person hired to

fill the job vacancy opened by the plain-

tiff's discharge. The plaintiff intro-

duced no evidence whatsoever supporting

his contention in paragraph 5 of his come-

plaint that he had "routinely been assign-

ed only the more difficult chores by

Supervisory personnel, who were of an

different race." The plaintiff introduced

no evidence indicating or suggesting any

disparate treatment of minority and non-

minority employees in the assignment of

work at Chrysler's parts depot. Finally,

with respect to the reason advanced by

Chrysler for the plaintiff's discharge --

i.e., the plaintiff's insubordinate and

threating conduct -- the plaintiff offered

no evidence suggesting that non-minority

employees had been treated any differently

than minority employees with respect to

such conduct.

In granting Chrysler's motion for in-

voluntary dismissal, the Court adopts’ the

following conclusions of law. The plain-

tiff carries "the initial burden of | show-

-A13-

ing actions taken, by the employer from

which one can infer, if such actions ré-

main unexplained, that it is more lixe-y

than not that such actions were ‘based on

a discriminatory criterion llegal under

the Act.'" Furnco Construction Corp. V.

Waters, 5° L.Ed. 24 957, 906 (1973). In

order to raise an inference of racial

discrimination, however, the plaintiff was

obliged to show that he was treated diffe-

rently than non-minority persons otherwise

similarly situated. Potter v. Goodwill

Industries, 10 F.E.P. Cases 1485, 1486

(6th Cir., 1975). In this case, the Court

finds that the plaintiff's evidence failed

as a matter of law to raise any inference

of racial discrimination.

The plaintiff's complaint charses

Chrysler with racial discrimination in two

forms: (1) the assignment of work orders,

and (2) the plaintiff's disharge. with

respect to the assignment of work orders,

the plaintiff adduced no evidence what-

soever showing any disparate treatment of

racia. mincerities in tne assignment of

work orders. Indeed, the plaintiff off-

ered no evidence at ail concerning the

-Al4-

assignment of work orders in the parts

depot.

With repsect to his discharge from em-

ployment, the plaintiff offered only the

evidence that he belongs to a racial min-

Ority, that he was discharged, and that

his discharge was not based on his job

performance. Such evidence, however,

merely establishes a single factor upon

which Chrysler did not act in discharging

the plaintiff. It does not suggest in any

way that Chrysler's actions in discharging

the plaintiff were racially motivated, or

that the factors upon which Chrysler did

act in discharging the plaintiff were not

appled equally to all employees.

This Court does not believe that the

discharge of a minority employee, whose

job performance is satisfactory, auto-

matically raises an inference of racial

discrmination. Indeed, such a rule would

be tantamount to holding that an employer

cannot discharge an employee for legiti-

mate, mon-discriminatory reasons wholly

unrelated to the _employee's satisfactory

performance of his assigned tasks. Until

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the employer's reason for discnarse is

shown to have a disparate impact upon min-

orities or is shown to have been applied

differently as between minority and non-

minority employees, no inference of racial

discrimination arises. In this case,

Chrysler's Third Defense to the plain-

tiff's complaint states unequivocally that

the plaintiff was discharged for insub-

ordinate and threatening conduct. The

plaintiff, however, did not show nor’ even

Suggest that non-minority employees were

not discharged for similar conduct. In

essence, plaintiff wholly failed to show

or suggest any action by Chrysler in which

it treated the plaintiff or other minority

employees any differently than it treated

non-minority employees.

On the basis of the foregoing findings

of fact and conclusions of law, Chrysler's

motion for involuntary dismissal is hereby

granted.

IT IS SO ORDERED, this 18th day of May,

19795.

HAROLD L. MURPHY

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT oF GEORGIA

ATLANTA DIVISION

U.S.D.C. aay Atlanta

FRANKLIN D, SMITH, CIVIL ACTION

Plaintiff,

V.

CHRYSLER CORPORATION, NUMBER C77-587A¢

Defendant.

ORDER

On May 21, 1979, the Court entered judg-

ment for the defendant, Chrysler Corpor-

ation, in this employment discrimination

action, brought Pursuant to 42 JU.s.c.

$2000(e) ("Title VII"). Plaintiff Franklin

D. Smith has now moved that the Court's

Judgment of dismissal be vacated and that

he be afforded 42 new trial Pursuant to

PED. R. CIV. Pp. 59(a).

?

At the trial of this action, the Court

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directed a verdict for defendant Chrysier

at the close of plaintiff's evidence on

the ground that plaintiff Smith had failed

to make out a prima facie case of

employment discrimination. Through one

witness plaintiff produced evidence that

he was a member of a protected minority, a

black person; that he had been employed by

Chrysler for several years prior to his

discharge in January, 1975; that his

discharge was not due to inadequate job

performance; and that there was no general

reduction in defendant's work force.

Plaintiff now cc.utends that this evi-

dence is sufficient to support the infer-

ence that his discharge resulted from the

racially discriminatory animus of the

defendant relying on McDonnell Douglas

Corporation v. Green, 411 U.S. 792 (1973)

and Furnco Construction Corporation v.

Waters, 438 U.S. 567 (1978). However, as

the Supreme Court noted in Furnco, Mc-

Donnell Douglas did not establish an in-

flexible rule with respect to making out a

prima facie case of employment discrimi-

nation. Furnco Construction Corp. Vv.

Waters, 438 U.S. 567, 575-76 (1978). What

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McDonnell Douglas did make clear is that a

Title VII plaintiff carries the initial

burden of showing actions taken by the em-

ployer from which one can infer, if such

actions remain unexplained, that it is

more likely than not that such actions

were based on a discriminatory criterion

illegal under the Act." Id. at 576;

International Brotherhood of Teamsters v.

United States, 431 U.S. 344, 358 (1977). A

prima facie case under McDonnell Douglas

raises an inference of discrimination only

because we presume these facts, if other-

wise unexplained, are more likely than not

based upon the consideration of impermiss-

ible factors. Furnco Construction Corp.

v. Waters, 438 U.S. 567, 577 (1978).

In the instant case, the Court has_ spe-

cifically noted in its order of dismissal

the lack of evidence indicating the race

of the person hired in his place. In the

absence of this evidence, the Court will

not presume that it is more likely than

not that plaintiff's discharge was based

on the consideration of impermissible

factors. See Flowers v. Crouch-Walker

Corp., 522 F.2d 1277 (7th Cir., 1977).

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ACCORDINGLY, plaintiff's motion for a

new trial is denied.

SO ORDERED, this 26th day of September,

1979.

HAROLD S. MURPHY

UNITED STATES DISTRICT JUDGE

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