United States Court of Appeals,
Fifth Circuit.
No. 93-3717
Summary Calendar.
Allen T. MARCANTEL, Plaintiff-Appellant,
v.
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT,
Defendant-Appellee.
Nov. 3, 1994.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before WISDOM, DAVIS and DUHÉ, Circuit Judges.
WISDOM, Circuit Judge:
This is an employment discrimination case that comes within
the three-tiered structure established in McDonnell Douglas,1
refined in Burdine,2 and recently reexamined in strong majority and
minority opinions in Hicks.3
The plaintiff/appellant Allan Marcantel, a white male, filed
a complaint alleging that the Louisiana Department of
Transportation (DOTD) discriminated against him in its employment
practices. The district court disagreed and granted summary
judgment for the defendant. We hold that even if we assume that
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973).
2
Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
3
St. Mary's Honor Center v. Hicks, --- U.S. ----, 113 S.Ct.
2742, 125 L.Ed.2d 407 (1993).
1
the plaintiff presented a prima facie case, the DOTD articulated a
legitimate, nondiscriminatory reason for its employment decision.
Marcantel failed to demonstrate that the explanation was
pretextual; failed to carry his burden under any accepted theory
of Title VII relief.
I.
In October of 1989 the DOTD successfully settled a civil
service complaint with Melvin Villery, an African-American
employee, who alleged that he had been passed over for promotion to
a supervisory position in Evangeline parish because of his race.
In accordance with the written settlement agreement, Villery
withdrew his complaint in return for $5,000 and DOTD's promise to
appoint him to the next available position of parish maintenance
supervisor. Shortly thereafter, DOTD appointed Villery to the then
vacant position of Maintenance Supervisor for St. Landry Parish.
DOTD submitted the affidavit of Joseph L. Wax, Deputy
Secretary of the Department at the time of the settlement with
Villery. Wax reviewed Villery's grievance and concluded that the
claim had merit and that filling the vacancy in St. Landry Parish
by appointment of Villery would be an appropriate remedy under the
approved settlement agreement between the Department and Villery.
Before executing the settlement agreement, Wax consulted the United
States Department of Justice for review and approval of the
settlement, including the fact that the anticipated St. Landry
vacancy would not be posted. DOTD was operating then and at all
relevant times under a consent decree issued by the district court
2
upon motion of the Department of Justice, to remedy past
discriminatory racial practices. The decree allows preferential
hiring of specified persons. The Department of Justice approved
the settlement, waived the posting of the vacancy, and gave the
DOTD credit toward the number of "preferential hires" required by
the consent decree. The settlement was also approved by the Civil
Service referee in accordance with the rules of the Civil Service
Commission.
Marcantel contends that he was better qualified than Villery
and that the DOTD should have found a way to settle Villery's
grievance rather than deviating from established practices. It
must be said that his argument, "settle if you must, but not at my
expense," is appealing. But it does not show that the DOTD had
racially discriminatory animus toward him.
The plaintiff filed suit, alleging that the DOTD had violated
the Fourteenth Amendment, Title VII and 42 U.S.C. sections 1981-
1983.4 The DOTD responded with a motion for summary judgment,
arguing that its good faith settlement with Villery could not be
considered an independent act of discrimination against Marcantel.
The district court agreed with the DOTD and dismissed the
plaintiff's action, holding that the "plaintiff lacks any
4
The McDonnell Douglas allocation of evidentiary burdens was
originally created for Title VII claims but has also been applied
by this Court to claims under sections 1981 and 1983. Lee v.
Conecuh County Bd. of Education, 634 F.2d 959 (5th Cir.1981);
Jenkins v. Caddo-Bossier Association for Retarded Children, 570
F.2d 1227 (5th Cir.1978); see also, Essary, The Dismantling of
McDonnell Douglas v. Green: The High Court Muddies the
Evidentiary Waters in Circumstantial Discrimination Cases, 21
Pepperdine L.Rev. 385, 389 (1994).
3
significantly probative evidence to support his claim that he was
denied the opportunity to be considered for the vacancy because of
his race."
II.
We review de novo the district court's order to grant summary
judgment.5 Summary judgment is of course appropriate when there is
no disputed issue of material fact.6
McDonnell Douglas7 established a three-tiered structured
analysis of disparate treatment cases brought by an employee
against an employer under Title VII of the Civil Rights Act of
1964. The aggrieved employee must present a prima facie case of
discrimination.8 This establishes a presumption that the employer
discriminated against the employee. The burden of production of
evidence (and persuasion) then shifts to the employer to produce
evidence of nondiscriminatory reasons for his treatment of the
employee. If the employer fails to do so, or falls short of the
burden of persuasion, the plaintiff prevails.9 If the employer
successfully carries the burden, the plaintiff may show that the
employer's reasons "were a pretext for discrimination".10
5
Chauvin v. Tandy Corporation, 984 F.2d 695, 697 (5th
Cir.1993).
6
Fed.R.Civ.Pro. 56(c); Celotex Corporation v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
7
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
8
Id. at 802, 93 S.Ct. at 1824.
9
Burdine, 450 U.S. at 254, 101 S.Ct. at 1094.
10
Id. at 253, 101 S.Ct. at 1093.
4
Burdine clarified the standard of proof for the second tier of
the McDonnell Douglas tripartite analysis. In a unanimous decision
the Supreme Court held that the employer bears only the burden of
producing evidence which explains clearly that the employment
decision was not pretextual but was motivated by a legitimate,
nondiscriminatory reason, for example, a business judgment. This
burden of production "merges with the ultimate burden of persuading
the court that [the plaintiff] has been the victim of intentional
discrimination".11 The Burdine Court added that "the plaintiff may
succeed in this either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation is
unworthy of credence".12 The language is clear on its face and
would seem to allow the plaintiff to prevail by proving
discrimination or by proving pretext.
Whether this language was meaningful or "inadvertent,"13 after
a decade of holdings that a finding of pretext was, in itself,
11
Id. at 256, 101 S.Ct. at 1095.
12
Id.
13
In Hicks, --- U.S. at ----, 113 S.Ct. at 2753, Justice
Scalia characterizes this as "dictum ... [which] must be regarded
as an inadvertence, to the extent that it describes disproof of
the defendant's reason as a totally independent, rather than an
ancillary, means of proving unlawful intent". Justice Scalia
relies on Burdine's "repeated assurance (indeed in its holding)
... [that] the ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff".
5
proof of discrimination,14 a number of courts began to hold that
"the pretext only" view of Burdine was not sufficient to prove
discrimination. This Court has been of two minds on the issue.15
In Hicks, the Supreme Court, in a five to four decision, has
settled the issue as of this date:16 the "pretext-only" doctrine
14
Hicks, --- U.S. at ---- - ----, 113 S.Ct. at 2756-57
(Justice Souter dissenting).
15
Compare Thornbrough v. Columbos & G.R.R., 760 F.2d 633,
639-640, 646-647 (5th Cir.1985) with Bienkowski v. American
Airlines, Inc., 851 F.2d 1503, 1508 & n. 6 (5th Cir.1988). See
generally, Lanctot, The Defendant Lies and the Plaintiff Loses:
the Fallacy of the "Pretext Plus" Rule in Employment
Discrimination Cases, 43 Hastings L.J. 59 (1991); Essary, The
Dismantling of McDonnell Douglas v. Green: The High Court
Muddies the Evidentiary Waters in Circumstantial Discrimination
Cases, 21 Pepperdine L.Rev. 385, 402-406 (1994).
16
A bill amending Title VII on this issue and, thereby,
altering the treatment of disparate treatment cases outlined by
the Supreme Court in Hicks was introduced but not passed in the
1993 session and will presumably be reintroduced in the 1994
session. H.R. 2867, 103rd Cong., 1st Sess. (1993). This bill,
titled the "Disparate Treatment Employment Discrimination
Amendment of 1993," provides:
(1) An unlawful employment practice based on disparate
treatment is established if—
(A) the complaining party, by a preponderance of
the evidence, proves a prima facie case
... and
(B) either—
(i) the respondent fails to produce any evidence
to rebut such case; or
(ii) the respondent clearly articulates ... one or
more legitimate nondiscriminatory reasons for the
conduct alleged ... and the complaining party
demonstrates that each of such reasons is not
true, but a pretext for discrimination....
6
is not enough; even if the employee proves that the employer's
nondiscriminatory reason is pretextual, the plaintiff must prove
that an unlawful discriminatory intent motivated the employer's
action. Under Rule 301 of the Federal Rules of Evidence the
presumption created by the plaintiff's presentation of a prima
facie case does not shift the burden of proof, the ultimate burden
of persuasion which a Title VII plaintiff bears at all times.
III.
Hicks may make the problem of proof more difficult for many
Title VII plaintiffs, but in this case the evidence that the
employer proffers to show DOTD's action was not pretextual merges
with proof that there was no discriminatory animus toward
Marcantel.
Specifically, the DOTD has offered undisputed evidence that
Villery's promotion was a good faith attempt to settle his claim
and remedy past discrimination. Marcantel, in response, argues
that he, as a qualified applicant for the job, should not be
deprived of an opportunity for promotion because of discrimination
perpetrated against Villery. As an innocent employee, he should
not bear the negative impact from the DOTD's discriminatory
treatment of another employee. The core issue then becomes whether
the DOTD, or any employer, can rely on the good faith settlement of
a discrimination claim as a legitimate business reason for certain
hiring and promotional decisions.
The Tenth Circuit Court of Appeals addressed this issue in an
7
analogous case, Carey v. U.S. Postal Service.17 In Carey, a white
postal worker, David Carey, alleged racial discrimination when a
black postal worker, Omar Nix, was promoted to a supervisory
position that was not advertised or publicly announced.18 The
promotion was part of settlement of an EEOC claim by Nix that he
was discriminated against in an earlier promotional decision
because of his race.19 The court concluded that the good faith
settlement was a nondiscriminatory reason for the decision to
promote Nix and held that agreements which settle Title VII claims:
may not be considered independent acts of discrimination,
[against those not benefited by the agreement] as a matter of
law, unless there are allegations of bad faith in making the
agreement, that is, allegations that the agreement was not a
bona fide attempt to conciliate a claim but rather an attempt
to bestow unequal employment benefits under the guise of
remedying discrimination.20
The Carey court also noted that characterizing a good faith
conciliation agreement as an act of discrimination would subject
employers to conflicting obligations. Any attempt by an employer
to redress valid claims of discrimination would expose the employer
to liability to other employees who are necessarily impacted by the
remedy.21
A decision by the Sixth Circuit Court in EEOC v. McCall
17
812 F.2d 621 (10th Cir.1987).
18
Id. at 622-23.
19
Id. at 623.
20
Id. at 624 (citations omitted).
21
Id. at 625 (citing Dennison v. City of Los Angeles Dept.
of Water and Power, 658 F.2d 694 (9th Cir.1981)).
8
Printing Corp.22 echoes the concerns of the Tenth Circuit Court of
Appeals. In McCall Printing, the EEOC, on behalf of a group of
black male employees, brought a claim under Title VII based on a
conciliation agreement entered into by their employer and a group
of female employees which granted the female employees increased
seniority rights.23 The plaintiff characterized the conciliation
agreement as an independent act of discrimination against the black
male employees.24 The Sixth Circuit Court, while noting that the
agreement conflicted with "the economic interests" of the black
male employees, held that the negative impact on other employees
was not sufficient to convert a good faith attempt to settle a
claim into an act of discrimination.25 Further, the court noted the
consequences if it did consider a good faith settlement violative
of Title VII:
This Court is convinced that the consideration of a
conciliation agreement which results in a consent decree as an
act of discrimination against employees not benefitted by that
agreement would create a situation in which each settlement
would spark new rounds of litigation, settlement of claims
would be discouraged, and the courts would be continually
faced with stale claims.26
The Sixth Circuit Court of Appeals, therefore, in accord with the
Tenth Circuit Court of Appeals, refused to allow a Title VII
plaintiff to base a claim of disparate treatment on a good faith
22
633 F.2d 1232 (6th Cir.1980).
23
Id. at 1234-35.
24
Id. at 1235.
25
Id. at 1237.
26
Id. at 1238.
9
conciliation agreement.
We conclude that a good faith attempt by an employer to remedy
past discrimination by entering a settlement agreement not only
successfully meets the challenge of a prima facie case but is not
an independent discriminatory act against employees not parties to
the agreement but adversely affected by it. Any other decision
would discourage settlement and hamper employers in their attempts
to redress past discrimination. The settlement with Villery was an
attempt by the DOTD to correct discriminatory treatment that
Villery, and others, had endured. As such, "the settlement of the
complaint and the resultant impact were inherently race neutral."27
This decision is further supported by the policies underlying
Title VII. The Supreme Court has noted that: "In enacting Title
VII, Congress expressed a strong preference for encouraging
voluntary settlement of employment discrimination claims."28 In
making these settlements, the interests of other employees
unavoidably will be affected. However, "[i]f relief under Title
VII can be denied merely because the majority group of employees,
who have not suffered discrimination, will be unhappy about it,
there will be little hope of correcting the wrongs to which the Act
is directed."29
27
Carey, 812 F.2d at 625.
28
Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14,
101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1981).
29
Franks v. Bowman Transportation Co., 424 U.S. 747, 775, 96
S.Ct. 1251, 1269, 47 L.Ed.2d 444 (1976) (quoting United States v.
Bethlehem Steel Corporation, 446 F.2d 652, 663 (2d Cir.1971)).
10
This Court has noted previously that some latitude should be
given to courts and employers attempting to correct past acts of
discrimination. "The law is well settled that relief under Title
VII cannot be denied simply because the interests of some employees
will be negatively affected...."30 Rather, "[a]dequate protection
of ... rights under Title VII may necessitate ... some adjustment
of the rights of ... [other] employees. The Court must be free to
deal equitably with conflicting interests of ... employees in order
to shape remedies that will most effectively protect and redress
the rights of the ... victims of discrimination."31
Finally, the plaintiff attempts to rely on the Supreme Court's
decision in Regents of the University of California v. Bakke32 to
make out his claim of reverse discrimination. The Bakke case dealt
with an affirmative action program that set aside a specific number
of positions for African-Americans.33 Thus, applicants who were not
African-Americans were wholly precluded from competing for those
positions, solely on the basis of race. The case before us is
distinguishable from the Bakke decision: here Marcantel was not
precluded from applying for the Highway Maintenance Superintendent
position because he was not a member of a specified race. All
30
EEOC v. International Longshoremen's Association, 623 F.2d
1054, 1060 (5th Cir.1980), certiorari denied, 451 U.S. 917, 101
S.Ct. 1997, 68 L.Ed.2d 310 (1981).
31
Vogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir.1971).
32
438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).
33
Id. at 272-276, 98 S.Ct. at 2738-40.
11
potential applicants were affected regardless of their race.34
We hold today that a good faith settlement of a claim of past
discrimination constitutes a legitimate, nondiscriminatory reason
for making employment decisions. The DOTD has come forth with
undisputed evidence that the promotion of Villery was a result of
such a good faith settlement. Wax, acting for DOTD, after
evaluating Villery's discrimination claim, decided that the
resulting settlement was a fair and equitable solution. The
plaintiff, as noted by the district court, has offered no evidence
that the agreement was not made in good faith, that is, that the
settlement was simply a pretext to hide discriminatory treatment of
the plaintiff, Marcantel.35 Moreover, the plaintiff has been unable
to shoulder the inescapable burden of proof borne by every
plaintiff. The grant of summary judgment in favor of the DOTD was
correct. We AFFIRM.
34
See Carey, 812 F.2d at 625, distinguishing the Bakke
decision on the same basis.
35
Marcantel v. Louisiana Department of Transportation and
Development, No. 91-1174-A (M.D.La. Sept. 24, 1993). The only
allegation made by the plaintiff regarding the settlement is that
the DOTD violated an existing consent decree when it promoted Mr.
Villery without statewide posting. As noted by the district
court, however, the DOTD sought and received approval of the
settlement from the Department of Justice (DOJ), who originally
moved for the consent decree, and the Civil Service Commission.
Id. at 2. The DOJ specifically "waived the posting of the
vacancy, and defendant [the DOTD] was given credit towards the
number of preferential hires required by the consent decree."
Id. at 2-3.
12