Irene Lindenau v. Clifford Alexander

McKAY, Circuit Judge,

concurring:

While I concur in the court’s disposition of this case, I do so with some qualification. The majority here adopts the position of the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), as to the tests applicable in cases such as this one. This Fifth Circuit position was developed prior to the decision of the United States Supreme Court in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), and, in my view, is no *75longer tenable. I believe the correct analysis is that posited by the Third Circuit in Dillard v. Brown, 652 F.2d 316 (3rd Cir. 1981), subsequent to Feeney. However, I do not believe that the plaintiff in this case has adequately alleged the kind of discriminatory intent required in any event. Therefore, I concur in the judgment affirm-' ing dismissal of her action.