James v. Newspaper Agency Corp.

McKAY, Circuit Judge, dissenting in part and concurring in part:

I dissent because I am convinced the trial court failed to evaluate the evidence as required by the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Furnco Construction Corp. v. Waters, 438 U.S. 567, 573, 98 S.Ct. 2943, 2948, 57 L.Ed.2d 957 (1978). Writing for a unanimous court in McDonnell Douglas, Mr. Justice Powell detailed the approach that should be followed in Title VII employment discrimination actions. Under that approach, the plaintiff carries the initial burden of establishing a prima facie case of prohibited employment discrimination. 411 U.S. at 802, 93 S.Ct. 1817. The burden then shifts to the employer to show that the decision adverse to the plaintiff was based on legitimate considerations rather than prohibited ones. Id.; Furnco Construction Corp. v. Waters, 98 S.Ct. at 2950. Finally, if the prima facie case is met, plaintiff is *584entitled to “a fair opportunity to show that [defendant’s] stated reason for [plaintiff’s] rejection was in fact pretext.” 411 U.S. at 804, 93 S.Ct. at 1825. If the plaintiff introduces such evidence of pretext, the trial court must confront it. Corley v. Jackson Police Department, 566 F.2d 994, 1001 (5th Cir. 1978).

The trial court did not cite the McDonnell Douglas case in its Memorandum Opinion, nor does the opinion’s analysis reflect that the test required by that case was utilized. The trial court simply stated that plaintiff failed to prove by a preponderance of the evidence that defendant’s refusal to give her the position was impermissibly discriminatory.1

In similar situations other circuits have remanded cases for consideration of the evidence in accordance with the McDonnell Douglas test. E. g., Blizard v. Fielding, 572 F.2d 13, 14-15 (1st Cir. 1978); Corley v. Jackson Police Department, 566 F.2d 994, 999-1001 (5th Cir. 1978); Pond v. Braniff Airways, Inc., 500 F.2d 161, 162, 165-67 (5th Cir. 1974). I would follow this procedure here. “It may be that the district court will find, after three steps, what it found after one step — that the decision not to hire plaintiff [for the position in question] was not influenced by her sex.” Blizard v. Fielding, 572 F.2d at 15. Nonetheless, I, like the majority in Blizard, “do not feel free ... to say that the McDonnell Douglas approach can be dispensed with.”2 Id.

However, more is required here than mere reconsideration of the evidence using the proper framework. McDonnell Douglas requires that plaintiffs be given a fair opportunity to demonstrate that reasons advanced by the employer for the action taken are in fact pretextual. The Court specifically noted in McDonnell Douglas that evidence demonstrating an employer’s practice with regard to minority employment would be relevant in establishing pretext. 411 U.S. at 804-05, 93 S.Ct. 1817. Furthermore, it observed that statistics concerning the employer’s employment practice and policy might be helpful in illuminating that practice. 411 U.S. at 805, 93 S.Ct. 1817 (citing the decision of this court in Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971)). Pretext can be shown by demonstrating that an employment decision “conformed to a general pattern of discrimination” against women. 411 U.S. at 805, 93 S.Ct. at 1825. In light of this authority, limiting plaintiff’s discovery to statistical data of a single department was error. She had a right to discover the company-wide employment practices of the defendant in an effort to show that the reasons advanced by defendant for her not receiving the job were pretextual.3

Similarly, the testimony of witnesses Hilton and Davie and the proffered EEOC forms were intended to demonstrate the discriminatory practices and policies of defendant. This evidence also bore on the issue of whether defendant’s articulated reasons for dismissing plaintiff were pretextual. It therefore should have been admitted.

Given the trial court’s failure to utilize the proper standard of evidentiary evaluation, plaintiff’s inability to discover information of crucial significance to her case, *585and the exclusion at trial of evidence similarly important, I would remand for a new trial on the discrimination claim.

Given my view of the appropriate disposition of this case, I consider the pretrial order issue to be moot. I concur in the majority’s decision regarding the wiretap claim.

. While I agree with the majority that plaintiff clearly established a prima facie case, the Memorandum Opinion does not particularize if or how defendant rebutted that showing, nor is reference made to evidence on the issue of pretext.

. I wish to make clear that I agree with the majority that mere failure of the trial court to cite McDonnell Douglas or to employ its exact phraseology does not compel reversal. I believe that the majority would agree with me that express reference to McDonnell Douglas and explicit application of its three-part test would nonetheless be the better practice, as that practice would both facilitate review and minimize litigant dissatisfaction. Where we disagree is on whether proper application of the McDonnell Douglas test can be inferred from the record in the instant case. Unlike the majority, 1 do not believe it can.

. Such statistics would also bear on plaintiff’s 42 U.S.C. § 2000e-2(a)(2) claim that defendant illegally classified its female employees, limiting them to lower status positions.