# Petition — Smith v. Chrysler Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0025%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 868 ## Text 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 m= Nog ’ SOPYULT ES LD Ay — 7 Town ~ om ny: TA PUT BE Ya NORTHERN oe ee bee YY \ ’ MOUN SAA RPAIT AIS TITT ATA: BailHls iA of de ¥ cb hd & Wo Iver rr crmrontry \ 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 -Al5- 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 -Al6- 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 -Al7- 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 -A18- 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). -A19- 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 -A20- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0025%3A1. Public record. Not legal advice.