Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 77-C-224 -- William E. Steckler, Judge.
Pell and Wood, Circuit Judges, and Hill, Senior District Judge.*fn*
This is an appeal from an order dismissing plaintiffs' individual and class claims of employment discrimination at the close of plaintiffs' case in chief pursuant to defendants' motion under Rule 41(b) of the Federal Rules of Civil Procedure. Plaintiffs contend that they made a prima facie case for their claims, that dismissal at the close of their case was therefore improper, and that the district court's findings were clearly erroneous and contrary to law. Plaintiffs also assign error to the district court's award of attorneys' fees to defendants. Defendants have petitioned this court for an award of appellate attorneys' fees, and have moved that we strike Appellants' Appendix, Volume II from the appellate record. We address only those issues that have been properly raised on this appeal.
I. Motion to Strike Appellants' Appendix Volume II
On or about March 16, 1982, plaintiffs-appellants filed a motion with this court for leave to file an oversized principal brief of 75 pages. We denied the motion on March 18, 1982. On March 29, 1982, plaintiffs simultaneously filed a 50-page principal brief, a 322-page appendix, and a 27-page Appendix, Volume II.
Examination of Appendix, Volume II reveals that it is nothing more than a mislabeled brief. Since we agree with the defendants that the Appendix, Volume II is "a readily transparent effort to circumvent the March 18, 1982 order of this Court," we grant the defendants' motion to strike the Appellants' Appendix, Volume II from the appellate record.
Alfred Ekanem and Toni Hardiman Spicer, both black, and Linda Marshall and Donald Kemp, both white, filed suit under Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (1976)) and 42 U.S.C. §§ 1981, 1983, 1985(3), and 1988 against the Health and Hospital Corporation of Marion County, Indiana (the "Corporation"), five officials, and six institutions operated by or associated with the Corporation. The complaint as amended included individual and class claims of racial discrimination in defendants' employment practices, individual claims of retaliation for protesting such discrimination, and individual claims of violations of first amendment rights.
This case was before this court once before on appeal of the district court's grant of a preliminary injunction ordering the Corporation to reinstate Ekanem and enjoining the Corporation from retaliating against Marshall and any others engaged in activity protected under Title VII. Ekanem v. Health and Hospital Corp., 589 F.2d 316 (7th Cir. 1978) (" Ekanem I ").*fn1 We reversed the district court on the grounds that Ekanem and Marshall had failed to show irreparable harm and a substantial likelihood of success on the merits. Ekanem, however, was reinstated to another administrative position prior to the issuance of our decision and thereafter continued in the employ of the Corporation until he was discharged in June of 1979.
Trial on the merits began on September 23, 1980. Ekanem amended the complaint on that day to include first amendment claims and an individual Title VII claim based on his June 1979 discharge. After 26 days of trial, plaintiffs concluded their case in chief and defendants moved for dismissal under Rule 40(b). The district court granted the defendants' motion and requested that the defendants submit proposed findings of fact and conclusions of law consistent with the ruling from the bench. On November 28, 1980, the court issued a written order based on the findings and conclusions submitted by defendants.
At the time of its oral ruling, the court did not discuss the issue of attorneys' fees, or suggest that the suit was frivolous. Nevertheless, the written findings submitted by the defendants and adopted by the court noted that the reversal of the preliminary injunction indicated to the plaintiffs that their claims were "frivolous, unreasonable, and groundless," and concluded that since the plaintiffs continued to pursue such clearly groundless claims, the defendants were entitled to costs and attorneys' fees. The district court conducted a full hearing on these issues in March and April of 1981. On May 15, 1981, the district court issued its order finding that defendants were entitled to recover attorneys' fees, that their claim in excess of $125,000 was reasonable, but that the award would be limited to $8,000 in consideration of the plaintiffs' ability to pay.
Plaintiffs contend that they made a prima facie showing of discrimination and retaliation and thus were entitled to have defendants present their evidence in order to give plaintiffs "a full and fair opportunity" to demonstrate that the defendants' reasons for their actions were merely pretexts for discrimination and retaliation. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089, (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). The plaintiffs base their argument on the three-step procedure for trying a Title VII claim that the Supreme Court outlined in McDonnell Douglas, 411 U.S. at 802, 804, whereby the plaintiff presents his case and describes the alleged discriminatory acts of the defendant, the defendant explains why his acts were motivated by legitimate considerations, and then the plaintiff explains why the defendant's stated justifications for its actions were merely pretexts for discrimination.
This three-step process is not a rigid framework, however. Rather, it "is merely a model for ordering and evaluating evidence concerning employment discrimination." Davis v. Weidner, 596 F.2d 726, 730 (7th Cir. 1979); see also Gaballah v. Johnson, 629 F.2d 1191, 1200 (7th Cir. 1980). Thus, it is not necessarily error for a district court to grant a Rule 41(b) motion at the close of the plaintiff's evidence based on the argument that the defendant must present evidence of nondiscriminatory justification for his actions so that the plaintiff may then come forward again to present evidence of pretext. See Gaballah, 629 F.2d at 1200.
Rule 41(b) provides that a district court may dismiss a plaintiff's action at the close of the plaintiff's presentation of evidence if the plaintiff has shown no right to relief under the facts and law. In ruling on a 41(b) motion, the district court must examine and weigh all the evidence, not just the evidence favorable to plaintiff. Sanders v. General Services Administration, 707 F.2d 969, 971 (7th Cir. 1983). Applying Rule 41(b) to Title VII cases, dismissal at the close of the plaintiff's case in chief is proper if the plaintiff fails to present a prima facie case of discrimination. Dismissal is also proper if the record at the close of plaintiff's case in chief contains the defendant's reasons for its actions, and if the evidence in the record is sufficient to support a judgment in the defendant's favor. As we noted in Gaballah, 629 F.2d at 1200:
Gaballah's basic contention that a showing of a prima facie case under Title VII precluded dismissal at the close of his evidence must fail. . . . The district court was free to proceed to the remaining steps of the McDonnell analysis and determine the ultimate issue of whether Gaballah had shown ...