Sitting by Designation, dissenting:
I would affirm. While I agree with the majority that, in making an independent determination of the ultimate fact of discrimination vel non,
we are bound by the trial court’s credibility determinations and findings of subsidiary facts which are not themselves clearly erroneous, examining only whether there are sufficient subsidiary facts to support the district court’s conclusion on the ultimate fact,
I respectfully disagree with the majority’s conclusion that such support does not exist in the record. The subsidiary facts are more than adequate.
Because of the trial court’s ruling at pretrial that plaintiff had established a prima facie case, defendant had from the outset of the trial the burden of proffering, through the introduction of admissible evidence, “some legitimate, nondiscriminatory reason for the employee’s rejection.” 1 Under the rule of the McDonnell Douglas Corp. case, defendant herein carried its burden of articulating, as a legitimate, nondiscriminatory requirement of the job, a personality well suited to cooperative work relations with co-workers in a small working environment and that it rejected Mrs. Robbins because the interviewer concluded that Mrs. Robbins did not possess this trait.2 It was this proffered reason that plaintiff was required to discredit as a pretext for discrimination. The presumption raised by the prima facie case was rebutted by defendant’s evidence, and discrimination then became an issue of fact which required plaintiff to establish that the articulated reason was not the true reason for her rejection.3
The record discloses that no element of race consideration existed during the interview or until the time Mrs. Robbins telephoned Mrs. Pollard about her application at a time when Mrs. Pollard was still involved in interviewing the 12 applicants. Her existing entry on the margin of Mrs. Robbins’ application at that time was that the applicant was “so-so,” and there is ample evidence in the record to establish that the reason for that adverse evaluation was Mrs. Robbins’ personality as projected during a routine and thorough interview. Because of Mrs. Robbins’ persistence, her age was given by Mrs. Pollard as a pretext, not to cover an illegal reason, but to avoid hurting Mrs. Robbins’ feelings by discussing her perceived personality. Mrs. Pollard’s notations including reference to Mrs. Robbins’ calls, her race and the possibility that she “could cause trouble,” were made after Mrs. Robbins had called the clinic three times, after she had been told of the personality evaluation, and after Mrs. Robbins accused Mrs. Pollard of discrimination and in fact threatened to file a complaint.
The record clearly establishes, and the trial judge found, that White-Wilson Medical Clinic, Inc., the employer, did not exclude black applicants, did not use an application containing any mention or clue as to race, and that Mrs. Robbins was the first black applicant interviewed by Mrs. Pollard in five years, notwithstanding evidence that Mrs. Pollard did not act alone in screening the applications for interviews. Also, this and other evidence in the record discloses that defendant had a policy of nondiscrimination, communicated to its supervisors, that its administrator, prior to the incident involved here, favored hiring of additional black employees, and that he took immediate charge of the situation involving Mrs. Robbins in order to determine what had happened. Further, the record shows that the successful applicant for the vacant posi*1070tion was chosen on the basis of the two requirements stated, including a favorable view as to her personality. The same is true as to subsequent selection of a black employee who now works with Mrs. Pollard.
Mrs. Robbins could naturally suspect that race was a factor in the selection process because of the absence of black employees other than janitors and maids, and because of Mrs. Pollard’s reference to age. Accordingly, she was entitled to a fair trial on the question whether defendant’s failure to select her was based on racial bias. But defendant also was entitled to a fair trial and the record establishes that the trial was fair to both parties.
This court must certainly guard against a nibbling away of its record of firm and judicious efforts to support the elimination of illegal discrimination; but this case comes to us essentially as one involving standard of review, and not civil rights. This case is not an appropriate one for the court to use to emphasize its continuing vigilance in the latter area; not with these facts; not with these parties; not with an unfairly imposed penalty on this clinic.
This appeal is based primarily if not entirely on the issue of alleged racial bias or animus on the part of Mrs. Pollard. The evidence does not support such a finding. This would not even be a close case were it not for Mrs. Pollard’s outdated, unacceptable, stereotypical descriptions, and her ingenuous inability to recognize them as such. But Title VII is not intended to and in any event could not possibly eliminate all of the stereotypical expressions in an imperfect world; its purpose is to assure that the reason for denial is not bias or animus. Mrs. Pollard seems obviously incapable of speaking in language which meets the test of modern race-free expression; so much so that the trial judge personally examined her closely and in detail on the question of discrimination on the basis of bias and prejudice. Her full testimony clearly showed that she had none; therefore none can be imputed to defendant. Plaintiff had her day in court, and the trial judge exercised his duty of close scrutiny and found that race played no part in Mrs. Pollard’s decision to reject her. On the facts of this record, we should not substitute a contrary belief for the conclusion of the judge who conducted the trial. His decision is supported by the evidence. It should not be reversed. I respectfully dissent.
. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).
. It is clear and admitted that plaintiff possessed the other requirement, qualification to perform clerical duties.
. Texas Dep’t of Community Affairs v. Burdine, supra note 1, 450 U.S. at 256, 101 S.Ct. at 1095.