Tina Lonnie
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A31700
Hearing Nos. 370-A1-X2419
370-A1-X2531
370-A2-X2003
Agency Nos. FNP-99-089R
FNP-2000-006
FNP-2000-107
DECISION
JURISDICTION
On January 14, 2003, complainant filed an appeal from the agency's December
16, 2002 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et
seq. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. §
1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Laborer, WG-2, in the Buildings Custodial Department, at the agency's
National Park Service in Yosemite National Park. Complainant filed three
EEO complaints alleging discrimination on the bases of race (African-
American), sex (female), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964. The first complaint was
filed on June 10, 1999, alleging discrimination when: (1) her requests for
training opportunities to enhance the development of her career were
denied; (2) she was not selected for a promotion to the position of
Maintenance Worker, WG-4749-05, advertised under vacancy announcement
number YOSE-97-99; and (3) she was subjected to harassment by her co-
workers (CW1 and CW2). In complaint #2, filed October 18, 1999,
complainant alleged that she was discriminated against on the bases of
race, sex, and reprisal when (4) she was not selected for a 120-day detail
in the Building and Grounds Department of Yosemite National Park. On
September 28, 2000, complainant filed her third formal complaint alleging
discrimination on the same bases when: (5) she was not selected for the
position of Laborer, WG-3502-03, advertised under vacancy announcement No.
98-62.
Each complaint was investigated separately. At the conclusion of the
investigations, complainant was provided with a copy of the reports of
investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing on each
of the three complaints. The AJ consolidated the three complaints.
On April 5, 2002, the AJ issued his notice of intent to issue a decision
without a hearing. Complainant's attorney filed a response to the AJ's
notice on April 25, 2002. Complainant's response asserted that she made
out a prima facie case of harassment based on race. Therefore,
complainant's counsel argued, the matter is one where summary judgment is
not appropriate. After a review of the investigative files and
complainant's submissions, the AJ issued a decision without a hearing on
July 1, 2002.
AJ DECISION
The AJ found that there were no material facts in dispute and the evidence
of record failed to establish complainant was discriminated against as
alleged.
Specifically, as to claim (1), the AJ noted that complainant did not
request specific training. Further, the AJ found that the record included
several training opportunities complainant received including training on
the 4X4 Mule, forklift safety and operation, and basic electrical.
Therefore, the AJ determined that complainant was not denied training
opportunities.
In claim (2), the AJ found that the agency provided legitimate,
nondiscriminatory reasons for its actions. In claim (2), complainant
alleged discrimination when she was not selected for the WG-5 Maintenance
Worker position. The AJ noted that S1 chose Selectee1 (white male) because
he had an extensive background in repair and maintenance work while
complainant lacked such experience. S1 then also chose Selectee2 (white
male) for another Maintenance Worker position based on his maintenance
experience. The AJ then turned to complainant to establish that the
agency's reasons were pretext and found that complainant failed to show
that she had the similar job-related experience as Selectee1 and 2.
Therefore, the AJ concluded that complainant had not established that the
agency's reasons were pretext for discrimination.
As to claim (4), the AJ found that the agency provided legitimate,
nondiscriminatory reasons for the detail. Complainant's supervisor (S1)
averred that he had a temporary promotional detail available, and three
equally qualified employees for the detail--complainant and two of her co-
workers (CW3 and CW4, both white males). S1 thought it would be fair to
give all three of them part of the detail by splitting the detail into
three ways, so each employee would get an opportunity to fill two forty-day
temporary details, one in the Building and Grounds Department and the other
in the Campground Maintenance Department. S1 chose names out of a hat to
decide the order of the details. CW3 was the first name out of the hat for
the Building and Grounds detail. CW4 was second and assigned to the
Campground Maintenance detail. Complainant's name was third and she was to
rotate into the Campground Maintenance detail after the first forty-day
detail period. However, the AJ found that at some later point, the Chief
of Maintenance offered complainant the whole 120-day detail and she
declined the offer. Because complainant declined the offer, S1 was told to
take complainant's name out of rotation. Based on the record, the AJ found
that S1 selected complainant for a forty-day detail and she was even
offered the full 120-day detail. Therefore, the AJ concluded that
complainant was not denied the detail as alleged.
As to claim (5), the AJ noted that complainant and two co-workers were
referred on the certificate for the WG-3 Laborer position. The AJ found
that the agency decided not to hire for the WG-3 Laborer position due to
lack of funding. While the management official who made the decision not
to fill the decision was aware of complainant's prior EEO activity
(Complaints 1 and 2 previously described), he denied that, rather than
funding problems, was the reason for his decision. Complainant asserted
that the agency did not fill the position because it did not want
complainant to get the job. Further, complainant claimed that she was
coerced into a sexual relationship with one of her supervisors (S3), who
participated in the selection. She asserted that she was not selected
because she ended the relationship with the S3. The AJ, however, noted
that complainant acknowledged that the relationship was consensual and that
it continued until February 2000, well after the agency decided not to fill
the WG-3 Laborer position in 1998. Accordingly, the AJ determined that
complainant failed to show pretext as to the position at issue in claim
(5).
The AJ also determined that complainant failed to establish her claim of
unlawful harassment. In claim (3), complainant asserted that she was
subjected to discriminatory harassment by several white male coworkers and
that management failed to do anything about it. The AJ found that
complainant did not assert that any of the alleged acts by these coworkers
were directed at her and also did not allege that they made any racially
derogatory remarks about her. Therefore, the AJ concluded that complainant
failed to establish her claim of harassment.
FINAL AGENCY ACTION
The agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that she was subjected to discrimination as
alleged. Complainant filed this appeal without comment. In response to
the appeal, the agency argued that the AJ correctly concluded that there
were no material facts in dispute and that complainant failed to establish
that she was discriminated against as alleged. As such, the agency
requested that the Commission affirm its final action.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an
agency's final action shall be based on a de novo review . . ."); see also
EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be reviewed de
novo"). This essentially means that we should look at this case with fresh
eyes. In other words, we are free to accept (if accurate) or reject (if
erroneous) the AJ's, and agency's, factual conclusions and legal analysis -
including on the ultimate fact of whether intentional discrimination
occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A.
(explaining that the de novo standard of review "requires that the
Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the
documents, statements, and testimony of record, including any timely and
relevant submissions of the parties, and . . . issue its decision based on
the Commission's own assessment of the record and its interpretation of the
law").
ANALYSIS AND FINDINGS
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn
in the non-moving party's favor. Id. at 255. An issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could find
in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the
case.
If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate. In the context of
an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty v.
Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given (1)
ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the
opportunity to respond to such a statement, and (4) the chance to engage in
discovery before responding, if necessary. According to the Supreme Court,
Rule 56 itself precludes summary judgment "where the [party opposing
summary judgment] has not had the opportunity to discover information that
is essential to his opposition." Anderson, 477 U.S. at 250. In the
hearing context, this means that the administrative judge must enable the
parties to engage in the amount of discovery necessary to properly respond
to any motion for a decision without a hearing. Cf. 29 C.F.R. §
1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a
decision without a hearing).
Upon review, we find that the record was fully developed by thorough
investigations. In particular, we note that the investigators conducted
detailed depositions of complainant, management and other witnesses. We
note that the witnesses appear to essentially agree on the facts involved
in the complaints at hand. Additionally, complainant failed to identify
any material facts in dispute at the hearing or on appeal. Therefore, we
determine that there are no material facts in dispute. Accordingly, we
conclude that summary judgment was appropriate.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under
the three-part analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first
establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v.
Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once
the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason. St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The elements of the prima facie case are determined by the individual
circumstances of each case and the bases of discrimination alleged; but
regardless of the specific action at issue, complainant may establish a
prima facie case by demonstrating: 1) that she is a member of a protected
group; 2) that she is similarly situated to employees outside of her
protected group; 3) and that she was treated differently than those
employees. Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864,
865 (6th Cir. 1975). In a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish a
prima facie case of reprisal by showing that: (1) she engaged in a
protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4)
a nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Claims (1), (2), and (5)
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the McDonnell
Douglas analysis, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated by
discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.
711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v.
Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the AJ correctly determined that complainant did
not show that she was discriminated against as alleged in claims (1). As
to claims (2) and (5), the AJ properly found that the agency articulated
legitimate, nondiscriminatory reasons and that complainant failed to
establish that those reasons were pretext.
Claim (4)
In claim (4), complainant is an African-American female who filed an EEO
complaint against S1. CW3 and CW4 (both white males who have not
participated in EEO activity) were selected by S1 for the details at issue.
Complainant was not provided with the detail. Therefore, we find that
complainant has established a prima facie case of discrimination based on
her race, sex and her prior EEO activity.
The burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. S1 averred that he selected
complainant, CW3 and CW4 for two details. He asserted that he placed the
names in a hat and that CW3 and CW4 were selected first out of the hat to
serve on the forty-day details. Complainant's name was third and she was
to rotate into the Campground Maintenance detail after the first forty-day
detail period. However, the AJ found that at some later point, the Chief
of Maintenance offered complainant the whole 120-day detail and she
declined the offer. Because complainant declined the offer, S1 was told to
take complainant's name out of rotation and she never served in either
details to the Building and Grounds Department or to the Campground
Maintenance Department.
We note that, in concluding no discrimination occurred, the AJ credited as
legitimate the agency's rationale for taking complainant out of the
rotation for the promotional detail-that complainant was offered the full
120-day detail and that she rejected it. The AJ, however, appears not to
have recognized that this "offer" was made during settlement discussions
between complainant and agency regarding a prior EEO complaint. See Report
of Counseling, Complaint FNP-00-006. In exchange for withdrawing an EEO
complaint, the agency offered to provide complainant with the whole 120-day
detail. Complainant refused the offer in order to pursue her EEO
complaint. The evidence is clear that she was then removed from her turn
at the rotational details, that she had already been granted, because of
her refusal to accept the settlement offer. EEOC Management Directive (MD)-
110, Chapter 12, is clear that settlements of EEO disputes must be
voluntary in nature, with the complainant free to choose not to settle and
instead pursue processing of his or her EEO complaint. Moreover,
"[s]ettlement negotiations, including any statements or proposals, are to
be treated as confidential and privileged to facilitate a candid
interchange to settle disputes informally." Harris v. Department of the
Navy, EEOC Request No. 05941002 (March 23, 1995). For these reasons, we
find that the agency's decision to pull complainant out of the rotation for
the promotional details was unlawful retaliation for complainant's decision
to exercise her protected right in the EEO complaint process to pursue her
previously filed EEO complaints rather than settling with the agency.
Harassment
It is well-settled that harassment based on an individual's sex and race,
or in retaliation for engaging is protected EEO activity, is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to
establish a claim of harassment under those bases, the complainant must
show that: (1) she belongs to the statutorily protected classes and/or
engaged in prior EEO activity; (2) she was subjected to unwelcome conduct
related to her membership in those classes and her prior EEO activity; (3)
the harassment complained of was based on sex, race and/or prior EEO
activity; (4) the harassment had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 (March 8, 1994).
Claim (3)
In claim (3), complainant alleged that she was subjected to a hostile work
environment when she was harassed on the basis of her race, sex and her
participation in prior EEO activity. Complainant noted that she was one of
the few African Americans working at the park and the only one in her
division. The record also establishes that due to the geographic isolation
of the park, many employees lived in close proximity to their work and each
other, and encountered each other both at work and when not working with
some frequency. Complainant stated that most other African American
employees who have tried "to work here and live here and make this their
community.have all left.I'm the only one that has stuck it out."
Deposition of June 11, 2001, pg.12.
Complainant asserted in August 1997 she was placed in a permanent position
at the park, where previously she had held a temporary job. She said that
almost immediately one of her coworkers (CW1, a white male) told her that
"the only reason you got a permanent job. is because [you are] black" and
then spat at her feet. Id., pg. 17. She said CW1 later repeatedly made
similar statements and continued spitting at her feet on a number of
different occasions for a period of "months and months," which she found
very offensive. Id., pg. 19. Complainant said she finally reported
CW1's conduct to her supervisor, S1, who sent her to a "mediation meeting"
with CW1, held with the agency's EEO counselor. After the mediation
session, complainant stated that CW1 stopped making the offensive
statements, but gave her a lot of "dirty looks," as well as complaining
frequently to management about her work.
Complainant's supervisor, S1, confirmed that she was the only African
American employee he supervised. He also said that he was aware that
complainant and CW1 had a long-standing hostile relationship, but
characterized it as a personality conflict. He indicated that he decided
to set up the mediation session for the two of them with the facility's EEO
counselor. He noted that during the lunch break of the mediation session,
an anonymous report was received that complainant had been seen using an
illegal substance while driving her park-issued scooter. He said the park
police investigated immediately and determined that the allegation was
untrue. He indicated that this incident "kind of ruined" the mediation.
Complainant's second-level supervisor, S2, confirmed that he was also aware
of a bad relationship between complainant and CW1 and counseled them to put
their differences aside, but he denied knowing there was a racial element
to their disputes. However, the EEO Counselor's report indicated that S2
told the counselor that CW1 was told by management that "his behavior was
not appropriate and would not be tolerated."
With regard to CW2's conduct, complainant asserted that he said that if she
got promoted before he did he was going to make "a big stink about it."
Id., pg. 24. Complainant also said that one day in front of the shop, CW2
(white, male) said he was going to rape the wife of the second-level
supervisor, S2. Complainant reported this statement to management and an
investigation of the incident was started. Complainant was detailed out of
the park to Santa Barbara for about a month during the investigation. When
she returned, she learned that S2 had been permanently transferred to
another park, but she was returned to work with CW2. She noted that in
addition to encountering him at work, CW2 also lived about five houses away
from her. Complainant asserted she was fearful for her own safety working
with CW2 and had been told by some friends that they heard him say that he
hoped she was dead. Complainant said she told management she was afraid of
CW2, but they did nothing about it. Complainant asserted that S2 (who was
white) was protected by the agency from CW2, while she was not.
S1 confirmed that complainant was briefly detailed to Santa Barbara because
of concerns that CW2 would retaliate against her for reporting his alleged
threat against S2's wife. He said CW2 was suspended for 30 days following
the investigation of this incident and he was aware that complainant was
afraid of CW2, and said he tried to keep them separated and to counsel CW2
frequently. S2 confirmed that he and his family transferred to another
park shortly after this incident, in part to get away from CW2. He also
confirmed complainant's assertion that CW2 was very angry at her, and
described him as very "imposing." He said that park law enforcement
continued to monitor CW2's actions on a regular basis.
Upon review, we find that the AJ correctly concluded that complainant
failed to show that the alleged incidents of harassment were due to her sex
and/or prior EEO activity. However, based on a review of the record, the
Commission disagrees with the AJ's conclusion that complainant did not
assert that any of the alleged acts by her coworkers were directed at her
and also did not allege that they made any racially derogatory remarks
about her. We find that the evidence of record showed that CW1's actions
were based, at least in part, on complainant's race. CW1 regularly
commented, for a period of "months and months," that the reason complainant
was hired by the agency was her race and spat in complainant's direction.
We note that complainant was the only person of her race employed at the
facility. There is also evidence that he acted in a generally hostile
manner towards her over a long period of time. Management was fully aware
of the hostile relationship between them, and sent them to a mediation
session with an EEO counselor to learn to "get along." These efforts,
however, were established to be unsuccessful.
The agency is liable for harassment by a co-worker if it knew of the
harassment and failed to take appropriate corrective action. Policy
Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050
(March 19, 1990); Owens v. Department of Transportation, EEOC Request No.
05940824 (September 5, 1996). Here, complainant informed her supervisors
of the harassment. Complainant stated and management officials confirmed
that she raised the issue of CW1 behavior. However, despite management
counseling of CW1 about his behavior, the hostility continued, a fact of
which the record indicates management was aware. Therefore, upon review, we
find that despite knowledge of the harassment, management did not take
prompt and appropriate corrective action. As such, we find that the agency
cannot make out an affirmative defense to complainant's claim of a
discriminatory hostile work environment. See Burlington Industries, Inc.,
v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257, 2270 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998); EEOC Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC
Notice No. 915.002 (June 18, 1999) at 12. Accordingly, we determine that
complainant has shown that she was subjected to a hostile work environment
based on her race.
With regard to the actions of CW2, we find that while complainant was
undoubtedly subjected to hostility by his actions, and reasonably feared
CW2, there is insufficient evidence to establish that CW2's actions were
motivated by racial discrimination rather than his anger at complainant
because she reported his threats directed at S2's wife. However, the
record does establish that agency management treated S2, who was white, and
complainant, who was African American, differently with regard to CW2. The
record establishes that S2 was permanently transferred to another park, at
least in part, to protect him from potential danger from CW2. Complainant,
on the other hand, was briefly sent to another facility, but then returned
to Yosemite where she continued to have to work with CW2. Complainant
asserted she was fearful for her own safety working with CW2 and had been
told by some friends that they heard him say that hoped she was dead.
Complainant said she told management she was afraid of CW2, but they did
nothing about it. We find that complainant has established a prima facie
case of disparate treatment by agency management based on race in this
matter, which the agency has failed to rebut with an articulation of a
legitimate, nondiscriminatory reason for the different treatment.
Therefore, we further find complainant has established an inferential case
of race discrimination with regard to agency management's lack of
appropriate response to her legitimate fears about having to continue to
work with CW2.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Commission to affirm in part and reverse in part the agency's final order.
The agency is ordered to take the corrective action listed below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. The agency shall provide complainant with forty-day detail opportunities
to both the Building and Grounds and the Campground Maintenance
Departments and provide her with back pay for any differences in salary
she would have incurred had she originally received these details.
2. The agency is directed to conduct training for the agency employees who
have been found to have created a hostile work environment as well as for
the management officials who failed to exercise reasonable care to
prevent the hostile work environment and who discriminated against
complainant. The agency shall address these employees' responsibilities
with respect to eliminating harassment in the workplace.
3. The agency shall consider taking disciplinary action against the
employees identified as being responsible for the discrimination and
unlawful harassment perpetrated against complainant. The agency shall
report its decision. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
4. The agency shall ensure that CW1 and CW2 are separated from complainant.
5. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of
her claim for compensatory damages within forty-five (45) calendar days
of the date complainant receives the agency's notice. The agency shall
complete the investigation on the claim for compensatory damages within
forty-five (45) calendar days of the date the agency receives
complainant's claim for compensatory damages. Thereafter, the agency
shall process the claim in accordance with 29 C.F.R. § 1614.110.
6. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
7. The agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.
POSTING ORDER (G0900)
The agency is ordered to post at its facility in Yosemite National Park,
copies of the attached notice. Copies of the notice, after being signed by
the agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said notices
are not altered, defaced, or covered by any other material. The original
signed notice is to be submitted to the Compliance Officer at the address
cited in the paragraph entitled "Implementation of the Commission's
Decision," within ten (10) calendar days of the expiration of the posting
period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R.
§ 1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency -- not
to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar days
of the completion of all ordered corrective action. The report shall be
submitted to the Compliance Officer, Office of Federal Operations, Equal
Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
The agency's report must contain supporting documentation, and the agency
must send a copy of all submissions to the complainant. If the agency does
not comply with the Commission's order, the complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
complainant also has the right to file a civil action to enforce compliance
with the Commission's order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29
C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file
a civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and
1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-
16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this case
if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and
arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C.
20036. In the absence of a legible postmark, the request to reconsider
shall be deemed timely filed if it is received by mail within five days of
the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other
party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only in
very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in an
appropriate United States District Court within ninety (90) calendar days
from the date that you receive this decision on both that portion of your
complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
agency, or your appeal with the Commission, until such time as the agency
issues its final decision on your complaint. If you file a civil action,
you must name as the defendant in the complaint the person who is the
official agency head or department head, identifying that person by his or
her full name and official title. Failure to do so may result in the
dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department in
which you work. If you file a request to reconsider and also file a civil
action, filing a civil action will terminate the administrative processing
of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the
Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The
grant or denial of the request is within the sole discretion of the Court.
Filing a request for an attorney does not extend your time in which to file
a civil action. Both the request and the civil action must be filed within
the time limits as stated in the paragraph above ("Right to File A Civil
Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 22, 2005
__________________
Date
Tag Archives: prima facie case
Lonnie v. Department of Interior
McDONNELL DOUGLAS CORP. v. GREEN, 411 U.S. 792 (1973)
McDONNELL DOUGLAS CORP. v. GREEN
No. 72-490
SUPREME COURT OF THE UNITED STATES
411 U.S. 792; 93 S. Ct. 1817; 36 L. Ed. 2d 668; 1973 U.S. LEXIS 154; 5 Fair Empl. Prac. Cas. (BNA) 965; 5 Empl. Prac. Dec. (CCH) P8607
March 28, 1973, Argued
May 14, 1973, Decided
PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
DISPOSITION: 463 F.2d 337, vacated and remanded.
CASE SUMMARY:
PROCEDURAL POSTURE: Petitioner employer sought review from a judgment of the United States Court of Appeals for the Eighth Circuit, which reversed the dismissal of respondent former employee’s racial discrimination claim under § 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2(a)(1).
OVERVIEW: The employee filed suit against the employer under § 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2(a)(1), claiming that the employer refused to rehire him as an aircraft mechanic because of his race and his involvement in the civil rights movement. The Supreme Court affirmed the reversal of the dismissal of the § 703(a)(1) claim because an Equal Employment Opportunity Commission finding of reasonable cause was not a jurisdictional prerequisite to the employee’s federal action for violation of § 703(a)(1). In remanding the matter for trial, the court instructed the lower court on the order and allocation of proof for the employee’s claim. The court found that the employee had presented a prima facie case of racial discrimination under § 703(a)(1) by showing that he was rejected for a job for which the employer knew he was qualified. However, the employer offered a legitimate, nondiscriminatory reason for the employee’s rejection in his participation in unlawful conduct against it. Therefore, the employee was entitled to a fair opportunity at trial to show that the employer used his conduct as a pretext for racial discrimination.
OUTCOME: The Court vacated the judgment reversing the dismissal and remanded the matter for trial with instructions that the employee was entitled to prove that the employer used his unlawful protests against it as a pretext to racial discrimination.
CORE TERMS: rehire, discriminatory, reasonable cause, racial discrimination, prima facie case, racially, qualifications, demonstration, lock-in, civil rights, civil rights, stall-in, pretext, employment discrimination, protest, door, fair opportunity, traffic, hiring, employment practice, unlawful conduct, respondent’s claim, involvement, hire, illegal activity, front, petitioner’s stated, employment decision, employment opportunities, jurisdictional prerequisite
LexisNexis(R) Headnotes
Civil Rights Law > Civil Rights Acts > Civil Rights Act of 1964
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN1] See 42 U.S.C.S. § 2000e-2(a)(1).
Civil Rights Law > Civil Rights Acts > Civil Rights Act of 1964
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN2] See 42 U.S.C.S. § 2000e-3(a).
Administrative Law > Judicial Review > Reviewability > Factual Determinations
Labor & Employment Law > Discrimination > Racial Discrimination > Enforcement
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN3] Absence of an Equal Employment Opportunity Commission finding of reasonable cause that a violation occurred cannot bar suit under an appropriate section of Title VII of the Civil Rights Act of 1964.
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN4] Title VII tolerates no racial discrimination, subtle or otherwise.
Evidence > Procedural Considerations > Burdens of Proof > General Overview
Labor & Employment Law > Discrimination > Racial Discrimination > Proof > Burdens of Proof > Employee Burdens
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN5] The complainant in a trial under Title VII of the Civil Rights Act of 1964 carries the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) 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, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer con-tinued to seek applicants from persons of complainant’s qualifications. The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.
Civil Rights Law > Civil Rights Acts > Civil Rights Act of 1964
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN6] Where employers have instituted employment tests and qualifications with an exclusionary effect on minority applicants, such requirements must be shown to bear a demonstrable relationship to successful performance of the jobs for which they were used.
Civil Rights Law > Civil Rights Acts > Civil Rights Act of 1964
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN7] Nothing in Title VII of the Civil Rights Act of 1964 compels an employer to absolve and rehire one who has engaged in deliberate, unlawful activity against it.
Civil Rights Law > Civil Rights Acts > Civil Rights Act of 1964
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN8] While Title VII of the Civil Rights Act of 1964 does not, without more, compel rehiring of a discharged employee, neither does it permit an employer to use the employee’s conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1) (42 U.S.C.S. § 2000e-2(a)(1)) of Title VII of the Civil Rights Act of 1964.
Civil Rights Law > Civil Rights Acts > Civil Rights Act of 1964
Labor & Employment Law > Discrimination > Racial Discrimination > Coverage & Definitions
Labor & Employment Law > Discrimination > Title VII of the Civil Rights Act of 1964 > General Overview
[HN9] In an employment discrimination suit under Title VII of the Civil Rights Act of 1964, a plaintiff must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a cover-up for an unlawful discriminatory decision.
SUMMARY: After the plaintiff, a Negro who had been employed by the defendant as a mechanic, was laid off in the course of a general reduction in the defendant’s work force, the plaintiff participated in a protest against alleged racial discrimination by the defendant in its employment practices. The protest included a “stall-in” whereby the plaintiff and others stopped their cars along roads leading to the defendant’s plant, so as to block access to the plant during the morning rush hour. When the defendant subsequently advertised for mechanics, the plaintiff applied for reemployment, but the defendant rejected the plaintiff on the asserted ground of his participation in the “stall-in.” The plaintiff then filed a complaint with the Equal Employment Opportunity Commission, claiming that the defendant had violated 703(a)(1) of the Civil Rights Act of 1964 by refusing to rehire him because of his race, and that the defendant had violated 704(a) of the Act by refusing to rehire him because of his activities in protesting against racial discrimination. The Commission made no finding on the plaintiff’s 703(a)(1) claim, but found reasonable cause to believe that the defendant had violated 704(a). After the Commission unsuccessfully attempted conciliation, the plaintiff asserted his 703(a)(1) and 704(a) claims in the United States District Court for the Eastern District of Missouri. The District Court dismissed the 703(a)(1) claim (299 F Supp 1100), on the ground that the Commission had failed to make a determination of reasonable cause to believe that the defendant had violated 703(a)(1). After a trial, the District Court dismissed the 704(a) claim with prejudice (318 F Supp 846), on the ground that the defendant’s refusal to rehire the plaintiff was based on the plaintiff’s conduct during the “stall-in,” which conduct was illegal and was unprotected by 704(a). The Court of Appeals for the Eighth Circuit affirmed the dismissal of the 704(a) claim, but the Court of Appeals held that a prior Commission determination of reasonable cause was not a jurisdictional prerequisite to raising a 703(a)(1) claim in federal court, and the Court of Appeals reversed the dismissal of the 703(a)(1) claim and set forth standards as to the parties’ burden of proof, upon remand, with respect to the 703(a)(1) claim (463 F2d 337).
On certiorari, the United States Supreme Court remanded the case to the District Court. In an opinion by Powell, J., expressing the unanimous views of the court, it was held that a Commission finding of reasonable cause was not a jurisdictional prerequisite to a 703(a)(1) suit, and that on retrial the plaintiff must be afforded a fair opportunity to demonstrate, in connection with his 703(a)(1) claim, that the defendant’s assigned reason for refusing to reemploy the plaintiff was pretextual or discriminatory in its application; and the court set forth standards somewhat different from those of the Court of Appeals with respect to the parties’ burden of proof.
LAWYERS’ EDITION HEADNOTES:
CIVIL RIGHTS §12.5 ;
jurisdiction — discriminatory employment practices — ;
Headnote:[1A][1B]
A person alleging that an employer has discriminated against him because of his race, in violation of 703(a)(1) of the Civil Rights Act of 1964 (42 USCS 2000e-2(a)(1)), which prohibits discriminatory employment practices, satisfies the juris-dictional prerequisites to a federal action (1) by filing timely charges of employment discrimination with the Equal Em-ployment Opportunity Commission, and (2) by receiving and acting upon the Commission’s statutory notice of the right to sue; a Commission finding of reasonable cause to believe that the employer has violated 703(a)(1) is not a jurisdictional prerequisite to a 703(a)(1) suit, and it is error for a Federal District Court to dismiss a 703(a)(1) claim on the ground of the absence of such a finding.
CIVIL RIGHTS §12.5 ;
jurisdiction — equal employment opportunities — ;
Headnote:[2]
Under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, a person’s right to sue is not limited to those charges as to which the Equal Employment Opportunity Commission has made findings of reasonable cause to believe that the Act has been violated; thus, absence of a Commission finding of reasonable cause does not bar suit under an appropriate section of Title VII.
APPEAL AND ERROR §1536
CIVIL RIGHTS §7.5
CIVIL RIGHTS §12.5;
discriminatory employment practices — harmless error — ;
Headnote:[3]
A Federal District Court’s erroneous dismissal of an action brought under 703(a)(1) of the Civil Rights Act of 1964 (42 USCS 2000e-2 (a)(1)), which prohibits discriminatory employment practices, does not constitute harmless error, where (1) it is not clear that the District Court’s findings against the plaintiff on his claim under 704(a) of the Act (42 USCS 2000e-3(a)), which prohibits employers’ retaliation against protests against discrimination, involved the identical issues raised by his claim under 703 (a)(1), since 704(a) relates solely to discrimination against an applicant or employee on account of his participation in legitimate civil rights activities or protests, while 703 (a)(1) deals with the broader and centrally important question under the Act of whether, for any reason, a racially discriminatory employment decision has been made, and (2) the District Court did not discuss the plaintiff’s 703(a)(1) claim in its opinion and denied requests for discovery of statistical materials which may have been relevant to the 703(a)(1) claim; the plaintiff should have been accorded the right to prepare his case and to plan the strategy of trial with the knowledge that the 703(a)(1) cause of action was properly before the District Court.
CIVIL RIGHTS §7.5 ;
equal employment opportunities — purpose of statute — ;
Headnote:[4]
The purposes of Congress in enacting Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, are to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.
CIVIL RIGHTS §7.5 ;
equal employment opportunities — purpose of statute — ;
Headnote:[5]
Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, is not intended by Congress to guarantee a job to every person regardless of qualifications.
CIVIL RIGHTS §7.5 ;
discriminatory employment practices — nature of statutory proscription — ;
Headnote:[6]
Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group; discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed; and what is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classi-fication.
CIVIL RIGHTS §7.5 ;
discriminatory employment practices — statutory proscription — ;
Headnote:[7]
Under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, the broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions; Title VII tolerates no racial discrimination, subtle or otherwise, in the implementation of such decisions.
EVIDENCE §383 ;
burden of proof — discriminatory employment practices — ;Headnote:[8]
In a trial under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, the complainant must carry the initial burden of establishing a prima facie case of racial discrimination; this may be done by showing (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that despite his qualifications, he was rejected; and (4) that after his rejection, the position remained open and the employer continued to seek applicants from persons of the complainant’s qualifications.
EVIDENCE §383 ;
prima facie proof — discriminatory employment practices — ;
Headnote:[9A][9B]
In an action alleging that the defendant’s refusal to rehire the plaintiff as a mechanic violated 703(a)(1) of the Civil Rights Act of 1964 (42 USCS 2000e-2(a)(1)), which prohibits discriminatory employment practices, the plaintiff, a Negro who has been a long-time activist in the civil rights movement, proves a prima facie case, where (1) the evidence shows that the defendant sought to employ mechanics and continued to do so after rejecting the plaintiff’s application for reemployment, and (2) the defendant does not dispute the plaintiff’s qualifications and acknowledges that the plaintiff’s past work performance as a mechanic in the defendant’s employ was satisfactory.
EVIDENCE §383 ;
burden of proof — equal employment opportunities — ;
Headnote:[10]
Under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, employment tests and qualifications must be shown to bear a demonstrable relationship to successful performance of the job for which they are used, where employers have instituted such tests and qualifications with an exclusionary effect on minority applicants.
EVIDENCE §90 ;
shifting of burden of proof — ;Headnote:[11]
Once the plaintiff proves a prima facie case in an action alleging that the defendant’s refusal to rehire the plaintiff violated 703(a)(1) of the Civil Rights Act of 1964 (42 USCS 2000e-2(a)(1)), which prohibits discriminatory employment practices, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the plaintiff’s rejection.
EVIDENCE §904.3 ;
sufficiency of evidence — discriminatory employment practices — ;
Headnote:[12A][12B]
In an action alleging that the defendant’s refusal to rehire the plaintiff, a Negro, violated 703(a)(1) of the Civil Rights Act of 1964 (42 USCS 2000e-2(a)(1)), which prohibits discriminatory employment practices, the defendant’s assignment of the plaintiff’s participation in unlawful conduct against the defendant as the cause of the plaintiff’s rejection suffices to discharge the defendant’s burden of proof and to meet the plaintiff’s prima facie case of discrimination, where the plaintiff admittedly had taken part in a carefully planned “stall-in,” designed to tie up access to the defendant’s plant during the morning rush hour.
CIVIL RIGHTS §7.5 ;
equal employment opportunities — ;
Headnote:[13]
Nothing in Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment op-portunities, compels an employer to absolve and rehire one who has engaged in deliberate, unlawful activity which was directed specifically against the employer.
CIVIL RIGHTS §7.5 ;
discriminatory employment practices — ;
Headnote:[14]
Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, does not permit an employer to use an employee’s deliberate, unlawful activity against the employer as a pretext for the sort of discrimination prohibited by 703(a)(1) of the Act (42 USCS 2000e-2(a)(1)), which prohibits discriminatory employment practices.
CIVIL RIGHTS §12.5
EVIDENCE §787 ;
refusal to rehire — racially discriminatory motive — relevancy — ;
Headnote:[15A][15B]
In an action alleging that the defendant’s refusal to rehire the plaintiff, a Negro, violated 703(a)(1) of the Civil Rights Act of 1964 (42 USCS 2000e-2(a)(1)), which prohibits discriminatory employment practices, the plaintiff is entitled to a full and fair opportunity to demonstrate by competent evidence that the stated, presumptively valid reason for the plaintiff’s rejection–his participation in a “stall-in” whereby the plaintiff and others stopped their cars along roads leading to the defendant’s plant, so as to block access to the plant during the morning rush hour–was in fact a pretextual coverup for a racially discriminatory decision; especially relevant to such a showing would be evidence that white employees involved in acts against the defendant of comparable seriousness to the “stall-in” were nevertheless retained or rehired; other evidence which may be relevant to any showing of pretextuality includes facts as to the defendant’s treatment of the plaintiff during the plaintiff’s prior term of employment, the defendant’s reaction, if any, to the plaintiff’s legitimate civil rights activities, and the defendant’s general policy and practice with respect to minority employment; and although the trial court may determine, after reasonable discovery, that the racial composition of the defendant’s labor force is itself reflective of restrictive or exclusionary practices, such general determinations may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire.
CIVIL RIGHTS §7.5 ;
equal employment opportunities — ;
Headnote:[16]
Under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment opportunities, an employer may justifiably refuse to rehire one who has engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
CIVIL RIGHTS §7.5 ;
discriminatory employment practices — ;
Headnote:[17]
In the absence of proof of pretextual or discriminatory application of an employer’s asserted reason for refusal to rehire, the employer’s asserted refusal to rehire a Negro former employee on the ground of his unlawful conduct against the employer is not the kind of artificial, arbitrary, and unnecessary barrier to employment which Congress intended to remove under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), which requires equal employment op-portunities.
CIVIL RIGHTS §7.5 ;
refusal to rehire — business justification — ;
Headnote:[18A][18B]
In view of the seriousness and harmful potential of a Negro former employee’s participation in a “stall-in” whereby cars were stopped along roads leading to an employer’s plant so as to block access to the plant during the morning rush hour, and in view of the accompanying inconvenience to other employees, the employer’s subsequent refusal to rehire the former employee cannot be said to have lacked a rational and neutral business justification.
CIVIL RIGHTS §7.5;
discriminatory employment practices. — ;
Headnote:[19]
If a Federal District judge finds that an employer’s assigned, presumptively valid reason for refusing to reemploy a Negro former employee was pretextual or discriminatory in its application, the District judge must order a prompt and appro-priate remedy, but in the absence of such a finding, the employer’s refusal to rehire must stand.
SYLLABUS
Respondent, a black civil rights activist, engaged in disruptive and illegal activity against petitioner as part of his protest that his discharge as an employee of petitioner’s and the firm’s general hiring practices were racially mo-tivated. When petitioner, who subsequently advertised for qualified personnel, rejected respondent’s re-employment application on the ground of the illegal conduct, respondent filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging violation of Title VII of the Civil Rights Act of 1964. The EEOC found that there was reasonable cause to believe that petitioner’s rejection of respondent violated § 704 (a) of the Act, which forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory employment conditions, but made no finding on respondent’s allegation that petitioner had also violated § 703 (a)(1), which prohibits discrimination in any employment decision. Following unsuccessful EEOC conciliation efforts, respondent brought suit in the District Court, which ruled that respondent’s illegal activity was not protected by § 704 (a) and dismissed the § 703 (a)(1) claim because the EEOC had made no finding with respect thereto. The Court of Appeals affirmed the § 704 (a) ruling, but reversed with respect to § 703 (a)(1), holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to claiming a vio-lation of that provision in federal court. Held:
1. A complainant’s right to bring suit under the Civil Rights Act of 1964 is not confined to charges as to which the EEOC has made a reasonable-cause finding, and the District Court’s error in holding to the contrary was not harmless since the issues raised with respect to § 703 (a)(1) were not identical to those with respect to § 704 (a) and the dismissal of the former charge may have prejudiced respondent’s efforts at trial. Pp. 798-800.
2. In a private, non-class-action complaint under Title VII charging racial employment discrimination, the com-plainant has the burden of establishing a prima facie case, which he can satisfy by showing that (i) he belongs to a racial minority; (ii) he applied and was qualified for a job the employer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafter the employer continued to seek applicants with complainant’s qualifications. P. 802.
3. Here, the Court of Appeals, though correctly holding that respondent proved a prima facie case, erred in holding that petitioner had not discharged its burden of proof in rebuttal by showing that its stated reason for the rehiring refusal was based on respondent’s illegal activity. But on remand respondent must be afforded a fair opportunity of proving that petitioner’s stated reason was just a pretext for a racially discriminatory decision, such as by showing that whites engaging in similar illegal activity were retained or hired by petitioner. Other evidence that may be relevant, depending on the circumstances, could include facts that petitioner had discriminated against respondent when he was an employee or followed a discriminatory policy toward minority employees. Pp. 802-805.
COUNSEL: Veryl L. Riddle argued the cause for petitioner. With him on the briefs were R. H. McRoberts and Thomas C. Walsh.
Louis Gilden argued the cause for respondent. With him on the brief were Jack Greenberg, James M. Nabrit III, William L. Robinson, and Albert Rosenthal. *
* Milton A. Smith and Lawrence M. Cohen filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.
Solicitor General Griswold, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, Keith A. Jones, David L. Rose, Julia P. Cooper, and Beatrice Rosenberg filed a brief for the United States as amicus curiae urging affirmance.
JUDGES: Powell, J., delivered the opinion for a unanimous Court.
OPINION BY: POWELL
OPINION
[*793] [***673] [**1820] MR. JUSTICE POWELL delivered the opinion of the Court.
The case before us raises significant questions as to the proper order and nature of proof in actions under Title [*794] VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000c et seq.
Petitioner, McDonnell Douglas Corp., is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 1964 1 when he was laid off in the course of a general reduction in petitioner’s work force.
1 His employment during these years was continuous except for 21 months of service in the military.
Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. 2 As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner’s plant for the purpose of blocking access to it at the time of the morning shift change. The District Judge described the plan for, and respondent’s participation in, the “stall-in” as follows:
“Five teams, each consisting of four cars would ‘tie up’ five main access roads into McDonnell at the time of the morning rush hour. The drivers of the cars were instructed to line up next to each other completely blocking the intersections or roads. The drivers were also instructed to stop their cars, turn off the engines, pull the emergency brake, raise all windows, lock the doors, and remain in their cars until the police arrived. The plan was to have the cars remain in position for one hour.
[*795] “Acting under the ‘stall in’ plan, plaintiff [respondent in the present action] drove his car onto Brown Road, a McDonnell access road, at approximately 7:00 a. m., at the start of the morning rush hour. Plaintiff was aware of the traffic problems that would result. He stopped his car with the intent to block traffic. The police [**1821] arrived shortly and requested plaintiff to move his car. He refused to move his car voluntarily. Plaintiff’s car was towed away by the police, and he was arrested for obstructing traffic. Plaintiff pleaded guilty to the charge of [***674] obstructing traffic and was fined.” 318 F.Supp. 846, 849.
2 The Court of Appeals noted that respondent then “filed formal complaints of discrimination with the President’s Commission on Civil Rights, the Justice Department, the Department of the Navy, the Defense Department, and the Missouri Commission on Human Rights.” 463 F.2d 337, 339 (1972).
On July 2, 1965, a “lock-in” took place wherein a chain and padlock were placed on the front door of a building to prevent the occupants, certain of petitioner’s employees, from leaving. Though respondent apparently knew beforehand of the “lock-in,” the full extent of his involvement remains uncertain. 3
3 The “lock-in” occurred during a picketing demonstration by ACTION, a civil rights organization, at the entrance to a downtown office building which housed a part of petitioner’s offices and in which certain of petitioner’s employees were working at the time. A chain and padlock were placed on the front door of the building to prevent ingress and egress. Although respondent acknowledges that he was chairman of ACTION at the time, that the demonstration was planned and staged by his group, that he participated in and indeed was in charge of the picket line in front of the building, that he was told in advance by a member of ACTION “that he was planning to chain the front door,” and that he “approved of” chaining the door, there is no evidence that respondent personally took part in the actual “lock-in,” and he was not arrested. App. 132-133.
The Court of Appeals majority, however, found that the record did “not support the trial court’s conclusion that Green ‘actively cooperated’ in chaining the doors of the downtown St. Louis building during the ‘lock-in’ demonstration.” 463 F.2d, at 341. See also concurring opinion of Judge Lay. Id., at 345. Judge Johnsen, in dissent, agreed with the District Court that the “chaining and padlocking [were] carried out as planned, [and that] Green had in fact given it . . . approval and authorization.” Id., at 348.
In view of respondent’s admitted participation in the unlawful “stall-in,” we find it unnecessary to resolve the contradictory contentions surrounding this “lock-in.”
[*796] Some three weeks following the “lock-in,” on July 25, 1965, petitioner publicly advertised for qualified me-chanics, respondent’s trade, and respondent promptly applied for re-employment. Petitioner turned down respondent, basing its rejection on respondent’s participation in the “stall-in” and “lock-in.” Shortly thereafter, respondent filed a formal complaint with the Equal Employment Opportunity Commission, claiming that petitioner had refused to rehire him because of his race and persistent involvement in the civil rights movement, in violation of §§ 703 (a)(1) and 704 (a) of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-2 (a)(1) and 2000e-3 (a). 4 The former section generally prohibits racial discrimination in any employment decision while the latter forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment.
4 Section 703 (a)(1) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2 (a)(1), in pertinent part provides:
[HN1] “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .”
Section 704 (a) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-3 (a), in pertinent part provides:
[HN2] “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter . . . .”
[*797] The Commission made no finding on respondent’s allegation of racial bias under § 703 (a)(1), but it did find reasonable cause to believe petitioner [***675] had violated § 704 (a) by refusing to rehire respondent because of his civil rights activity. After the Commission unsuccessfully attempted to conciliate the dispute, it advised respondent in March 1968, of his right to institute a civil action in federal court within 30 days.
On April 15, 1968, respondent brought the present action, claiming initially a violation of § 704 (a) and, in an amended [**1822] complaint, a violation of § 703 (a)(1) as well. 5 The District Court dismissed the latter claim of racial dis-crimination in petitioner’s hiring procedures on the ground that the Commission had failed to make a determination of reasonable cause to believe that a violation of that section had been committed. The District Court also found that petitioner’s refusal to rehire respondent was based solely on his participation in the illegal demonstrations and not on his legitimate civil rights activities. The court concluded that nothing in Title VII or § 704 protected “such activity as em-ployed by the plaintiff in the ‘stall in’ and ‘lock in’ demonstrations.” 318 F.Supp., at 850.
5 Respondent also contested the legality of his 1964 discharge by petitioner, but both courts held this claim barred by the statute of limitations. Respondent does not challenge those rulings here.
On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities under § 704 (a), 6 but reversed the dismissal of respondent’s § 703 (a)(1) claim relating to racially discriminatory hiring practices, holding that a prior Commission determination of reasonable cause was not a jurisdictional prerequisite to raising a claim under that section in federal court. The court [*798] ordered the case remanded for trial of respondent’s claim under § 703 (a)(1).
6 Respondent has not sought review of this issue.
In remanding, the Court of Appeals attempted to set forth standards to govern the consideration of respondent’s claim. The majority noted that respondent had established a prima facie case of racial discrimination; that petitioner’s refusal to rehire respondent rested on “subjective” criteria which carried little weight in rebutting charges of discrimination; that, though respondent’s participation in the unlawful demonstrations might indicate a lack of a responsible attitude toward performing work for that employer, respondent should be given the opportunity to demonstrate that petitioner’s reasons for refusing to rehire him were mere pretext. 7 In order to clarify the standards governing the disposition of an action challenging employment discrimination, we granted certiorari, 409 U.S. 1036 (1972).
7 All references here are to Part V of the revised opinion of the Court of Appeals, 463 F.2d, at 352, which superseded Part V of the court’s initial opinion with respect to the order and nature of proof.
I
[***LEdHR1A] [1A] [***LEdHR2] [2]We agree with the Court of Appeals that [HN3] absence of a Commission finding of reasonable cause cannot bar suit under an appropriate section of Title VII and that the District Judge erred in dismissing respondent’s claim of racial discrimination under § 703 (a)(1). Respondent satisfied the jurisdictional pre-requisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission’s statutory [***676] notice of the right to sue, 42 U. S. C. §§ 2000e-5 (a) and 2000e-5 (e). The Act does not restrict a complainant’s right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of [*799] claims of employment discrimination in the federal courts. The Commission itself does not consider the absence of a “reasonable cause” determination as providing employer immunity from similar charges in a federal court, 29 CFR § 1601.30, and the courts of appeal have held that, in view of the large volume of complaints before the Commission and the nonadversary character of many of its proceedings, “court actions under Title VII are de novo proceedings [**1823] and . . . a Commission ‘no reasonable cause’ finding does not bar a lawsuit in the case.” Robinson v. Lorillard Corp., 444 F.2d 791, 800 (CA4 1971); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (CA5 1971); Flowers v. Local 6, Laborers International Union of North America, 431 F.2d 205 (CA7 1970); Fekete v. U.S. Steel Corp., 424 F.2d 331 (CA3 1970).
[***LEdHR3] [3]Petitioner argues, as it did below, that respondent sustained no prejudice from the trial court’s erro-neous ruling because in fact the issue of racial discrimination in the refusal to re-employ “was tried thoroughly” in a trial lasting four days with “at least 80%” of the questions relating to the issue of “race.” 8 Petitioner, therefore, requests that the judgment below be vacated and the cause remanded with instructions that the judgment of the District Court be affirmed. 9 We cannot agree that the dismissal of respondent’s § 703 (a)(1) claim was harmless error. It is not clear that the District Court’s findings as to respondent’s § 704 (a) contentions involved the identical issues raised by his claim under § 703 (a)(1). The former section relates solely to discrimination against an applicant or employee on account of his participation in legitimate civil rights activities or protests, while the latter section deals with the broader and centrally [*800] important question under the Act of whether, for any reason, a racially discriminatory employment decision has been made. Moreover, respondent should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the § 703 (a)(1) cause of action was properly before the District Court. 10 Accordingly, we remand the case for trial of respondent’s claim of racial discrimination consistent with the views set forth below.
8 Tr. of Oral Arg. 11.
9 Brief for Petitioner 40.
10 The trial court did not discuss respondent’s § 703 (a)(1) claim in its opinion and denied requests for discovery of statistical materials which may have been relevant to that claim.
II
[***LEdHR4] [4] [***LEdHR5] [5] [***LEdHR6] [6]The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971); [***677] Castro v. Beecher, 459 F.2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA2 1972); Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (ED Va. 1968). As noted in Griggs, supra:
“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. [*801] What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Id., at 430-431.
[***LEdHR7] [7]There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of [**1824] such decisions, it is abun-dantly clear that [HN4] Title VII tolerates no racial discrimination, subtle or otherwise.
In this case respondent, the complainant below, charges that he was denied employment “because of his involvement in civil rights activities” and “because of his race and color.” 11 Petitioner denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case. 12 We now address this problem.
11 The respondent initially charged petitioner in his complaint filed April 15, 1968, with discrimination because of his “involvement in civil rights activities.” App. 8. In his amended complaint, filed March 20, 1969, plaintiff broadened his charge to include denial of employment because of race in violation of § 703 (a)(1). App. 27.
12 See original opinion of the majority of the panel which heard the case, 463 F.2d, at 338; the concurring opinion of Judge Lay, id., at 344; the first opinion of Judge Johnsen, dissenting in part, id., at 346; the revised opinion of the majority, id., at 352; and the supplemental dissent of Judge Johnsen, id., at 353. A petition for rehearing en banc was denied by an evenly divided Court of Appeals.
[*802] [***LEdHR8] [8] [***LEdHR9A] [9A] [***LEdHR10] [10] [HN5] The 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 (i) 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, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 13 In the instant case, we [***678] agree with the Court of Appeals that respondent proved a prima facie case. 463 F.2d 337, 353. Petitioner sought mechanics, respondent’s trade, and continued to do so after respondent’s rejection. Petitioner, moreover, does not dispute respondent’s qualifications 14 and acknowledges that his past work performance in petitioner’s employ was “satisfactory.” 15
13 The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.
14 We note that the issue of what may properly be used to test qualifications for employment is not present in this case. [HN6] Where employers have instituted employment tests and qualifications with an exclusionary effect on minority applicants, such requirements must be “shown to bear a demonstrable relationship to successful performance of the jobs” for which they were used, Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Castro v. Beecher, 459 F.2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA2 1972).
15 Tr. of Oral Arg. 3; 463 F.2d, at 353.
[***LEdHR11] [11]The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. We need not attempt in the instant case to detail every matter which fairly could be [*803] recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.
[***LEdHR12A] [12A] [***LEdHR13] [13]The Court of Appeals intimated, however, that petitioner’s stated reason for refusing to rehire respondent was a “subjective” rather than objective criterion which “carr[ies] little weight in rebutting charges of discrimination,” 463 F.2d, at 352.This was among the statements which caused the dissenting judge [**1825] to read the opinion as taking “the position that such unlawful acts as Green committed against McDonnell would not legally entitle McDonnell to refuse to hire him, even though no racial motivation was involved . . . .” Id., at 355. Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part in a carefully planned “stall-in,” designed to tie up access to and egress from petitioner’s plant at a peak traffic hour. 16 [HN7] Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it. 17 In upholding, under the National Labor Relations Act, the discharge of employees who had seized and forcibly retained [*804] an employer’s factory buildings in an illegal sit-down strike, the Court noted pertinently:
“We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, — to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property . . . . Apart [***679] from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable ex-pression.” NLRB v. Fansteel Corp., 306 U.S. 240, 255 (1939).
16 The trial judge noted that no personal injury or property damage resulted from the “stall-in” due “solely to the fact that law enforcement officials had obtained notice in advance of plaintiff’s [here respondent’s] demonstration and were at the scene to remove plaintiff’s car from the highway.” 318 F.Supp. 846, 851.
17 The unlawful activity in this case was directed specifically against petitioner. We need not consider or decide here whether, or under what circumstances, unlawful activity not directed against the particular employer may be a legitimate justification for refusing to hire.
[***LEdHR14] [14] [***LEdHR15A] [15A] [***LEdHR16] [16]Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. [HN8] While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent’s conduct as a pretext for the sort of discrimi-nation prohibited by § 703 (a)(1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the “stall-in” were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner’s treatment of respondent during his prior term of employment; petitioner’s reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general policy and [*805] practice with respect to minority employment. 18 On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 [**1826] (CA10 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 91-94 (1972). 19 In short, on the retrial [HN9] re-spondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.
18 We are aware that some of the above factors were, indeed, considered by the District Judge in finding under § 704 (a), that “defendant’s [here petitioner’s] reasons for refusing to rehire the plaintiff were motivated solely and simply by the plaintiff’s participation in the ‘stall in’ and ‘lock in’ demonstrations.” 318 F.Supp., at 850. We do not intimate that this finding must be overturned after consideration on remand of respondent’s § 703 (a)(1) claim. We do, however, insist that respondent under § 703 (a)(1) must be given a full and fair opportunity to demonstrate by competent evidence that whatever the stated reasons for his rejection, the decision was in reality racially premised.
19 The District Court may, for example, determine, after reasonable discovery that “the [racial] composition of defendant’s labor force is itself reflective of restrictive or exclusionary practices.” See Blumrosen, supra, at 92. We caution that such general determinations, while helpful, may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire. See generally United States v. Bethlehem Steel Corp., 312 F.Supp. 977, 992 (WDNY 1970), order modified, 446 F.2d 652 (CA2 1971). Blumrosen, supra, n. 19, at 93.
[***LEdHR17] [17] [***LEdHR18A] [18A]The court below appeared to rely upon Griggs v. Duke Power Co., supra, in which the Court stated: “If an employment practice which operates to exclude Negroes cannot [*806] be shown to be related to job performance, the practice is prohibited.” 401 U.S., at 431. [***680] 20 But Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Id., at 430. Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant’s personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of “artificial, arbitrary, and unnecessary barriers to employment” which the Court found to be the intention of Congress to remove. Id., at 431. 21
20 See 463 F.2d, at 352.
[***LEdHR18A] [18B]
21 It is, of course, a predictive evaluation, resistant to empirical proof, whether “an applicant’s past participation in unlawful conduct directed at his prospective employer might indicate the applicant’s lack of a responsible attitude toward performing work for that employer.” 463 F.2d, at 353. But in this case, given the seriousness and harmful potential of respondent’s participation in the “stall-in” and the accompanying inconvenience to other employees, it cannot be said that petitioner’s refusal to employ lacked a rational and neutral business justification. As the Court has noted elsewhere:
“Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust.” Garner v. Los Angeles Board, 341 U.S. 716, 720 (1951).
[*807] III
[***LEdHR1A] [1B] [***LEdHR9A] [9B] [***LEdHR12A] [12B] [***LEdHR15A] [15B] [***LEdHR19] [19]In sum, respondent should have been allowed to pursue his claim under § 703 (a)(1). If the evidence on retrial is substantially in accord with that before us in this case, we think that respondent carried his burden of establishing a prima facie case of racial discrimination and that petitioner successfully rebutted that case. But this does not end the matter. On retrial, respondent must be afforded a fair opportunity to demonstrate [**1827] that petitioner’s assigned reason for refusing to re-employ was a pretext or discriminatory in its application. If the District Judge so finds, he must order a prompt and appropriate remedy. In the absence of such a finding, petitioner’s refusal to rehire must stand.
The judgment is vacated and the cause is hereby remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
REFERENCES
15 Am Jur 2d, Civil Rights 58.3
5 Am Jur Pl n Pr Forms (Rev ed), Civil Rights, Forms 61-63; 16 Am Jur Pl & Pr Forms (Rev ed), Labor and Labor Relations, Forms 323-337
US L Ed Digest, Civil Rights 7.5, 12.5; Evidence 90, 383, 787, 904.3
ALR Digests, Civil Rights 1
L Ed Index to Anno, Labor and Employment
ALR Quick Index, Discrimination; Fair Employment Practices
Federal Quick Index, Civil Rights; Fair Employment Practices
Annotation References:
Racial discrimination in labor and employment. 28 L Ed 2d 928.
Filed under Case Law
Employment Complaints Are Us 