Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. CF-78-93 -- Jesse E. Eschbach, Judge.
Cummings, Chief Judge, Pell, Circuit Judge, and Cudahy, Circuit Judge. Pell, Circuit Judge, dissenting.
This is a review of the district court's finding that defendants-appellants have unlawfully terminated plaintiffs' employment as a Dietician III at the Fort Wayne State Hospital and Training Center (State Hospital), because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
We proceed by addressing appellants' argument which is tantamount to an assertion of an affirmative defense, namely that in order to establish an element of a prima facie case of employment discrimination, the plaintiff is required to prove that his position was not filled by "a member of the protected minority."
In McDonnell Douglas Corp. v. Green, the Supreme Court held that a plaintiff could make a prima facie claim of employment discrimination 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.
411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) (footnote omitted). Appellants argue that appellee has not and cannot establish a prima facie case of discriminatory discharge from employment because "element (iv) [of the McDonnell model for proving a prima facie case] necessitates a showing that a plaintiff's position was filled by a person not a member of the protected minority. . . . [And since] the evidence established that [appellee, a black man] was permanently replaced by a member of a protected class [a female], the burden of going forward did not pass to Appellants."*fn1 [Appellants' Brief at 6-7]. The dissenting opinion, in support of appellants' argument, also sees the fact that appellants sought minority applicants as foreclosing the finding that appellants have engaged in discriminatory conduct towards this appellee.*fn2
That reasoning would foreclose a plaintiff from proving a prima facie case unless an employer discriminated not only against plaintiff but also against every so-called protected minority by hiring a so-called "non-protected" person to fill the position.*fn3 Appellants' argument defies the logic, purpose and language of Title VII.
The reference to an employer seeking applicants from persons of "complainant's qualifications" in the (iv) element of the McDonnell model for establishment of a prima facie case, does not refer to the complainant's racial, ethnic, gender, religious, or national origin background. Title VII does not establish a class of protected minorities and non-protected others. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 259. "It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the work force." Furnco Const. Corp. v. Waters, 438 U.S. at 579. We hold that the reference to "complainant's qualifications" in the McDonnell model refers to a complainant's pertinent skills, talents, learning, training, and experience. The central focus of the inquiry in a Title VII case such as this is whether the employer is treating a plaintiff less favorably than others because of his race, color, religion, sex or national origin. id. at 577. "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. 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. . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. . . . Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origin. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant." Griggs v. Duke Power Co., 401 U.S. 424, 430, 431, 432, 436, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971).
The fact that appellants have hired a female to replace appellee does not therefore preclude appellee from proving a prima facie case of discriminatory discharge from employment. "A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination. . . . 'The company's later changes in its hiring and promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it.'" Furnco Const. Corp. v. Waters, 438 U.S. at 579, citing, Teamsters v. United States, 431 U.S. 324, 341-42, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977).*fn4
We will now apply the clearly erroneous standard to the review of the district court's findings of subsidiary facts encompassing the parties' conduct. Fed. R. Civ. P. 52(a). However, the ultimate fact of discrimination, namely whether defendants' conduct constitutes a violation of Title VII, involves both a finding of fact and a conclusion of law. Consequently, we may make an independent examination of the ultimate fact of discrimination, though we are still bound by findings of subsidiary facts which are not clearly erroneous. ...