APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-2689)
Before Adams, Rosenn and Sloviter, Circuit Judges.
On March 20, 1971 the appellant, Curtis Worthy, was operating a 30 ton crane in the 18 Inch Hot Strip Mill of the United States Steel plant at Fairless Hills, Pennsylvania, when it collided with another crane operated by Raymond Weaver. As a result of the collision, Worthy was suspended for ten days and demoted from his position as crane operator, classified as Coiler, Class 12, to Bander, Class 4. Worthy, who is black, asserts that the suspension and the demotion constituted disparate treatment against him in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The district court found for the defendant employer (U.S. Steel) and Worthy appeals. The principal issue is whether the district court gave sufficient consideration to the employer's treatment of white employees in determining that there was no discrimination.
On this appeal, the parties stress different facts and evidence in support of their opposing contentions. Our view of the case makes it unnecessary for us to undertake a detailed examination of the evidence. In essence, Worthy claims that he was given an unduly harsh ten-day suspension and demotion by U.S. Steel because he was black. U.S. Steel claims that these were valid safety and disciplinary measures of a nondiscriminatory nature.
Worthy's case was consolidated for discovery and trial with a class action alleging racial discrimination at the plant. Trial of the consolidated action consumed 85 days. The class action suit involved a broad based attack on many aspects of the hiring and employment practices at the facility. The district court issued two lengthy opinions dealing primarily with the issues applicable to the class, one on July 25, 1977 at the conclusion of plaintiffs' case, reported as Dickerson v. United States Steel Corp., 439 F. Supp. 55 (E.D.Pa.1977), and the second on August 2, 1978 at the conclusion of all the testimony, reported at 472 F. Supp. 1304 (E.D.Pa.1978). Of the three individual claims which were consolidated with the class action, Worthy's was the only individual case, the other two being the claims of the class representatives. Although Worthy's case took almost ten days to try, it was considered by the court in a brief discussion at the conclusion of both opinions. See 439 F. Supp. at 89-90; 472 F. Supp. at 1356.
In its first opinion the district court held that Worthy had sustained the burden of proving a prima facie case of disparate treatment discrimination because "(t)he testimony and documents submitted by the plaintiff show that whites were not so (demoted and suspended) under similar circumstances." 439 F. Supp. at 90. In the final opinion at the conclusion of all of the testimony, the district court disposed of Worthy's individual claim in a two paragraph portion of the larger opinion. The court held that Worthy's suspension and demotion were nondiscriminatory when viewed against the handling of the white cranemen's cases. The court determined that Worthy's safety record of three accidents and other citations for improper crane operation "placed him at the same level, if not worse, as white cranemen who were demoted." Since Worthy failed on many occasions to properly operate the crane and thus endangered the safety of other men, the court concluded that removing him from the craneman's job, as had been done with whites, "was a rational and nondiscriminatory safety measure, not a discriminatory discipline." In addition, the court found that the ten-day suspension was not excessive, since it was not only for the improper crane operation but for violating two additional rules failing to report the accident and failing to cease operation of the crane after the accident. Therefore the ten-day "discipline was not unreasonable, even when compared with lesser suspensions received by whites," since the whites apparently did not violate the two other rules. 472 F. Supp. at 1356. On Worthy's motion for reconsideration the court reaffirmed its finding that the demotion was not discriminatory.
On appeal, Worthy asserts that the district court's conclusion that his demotion was a nondiscriminatory safety measure and that his ten-day suspension was not unreasonable or discriminatory was clearly erroneous because the record shows that whites with worse safety records were not demoted and that whites with comparable infractions were not disciplined. Worthy also claims that the district court erred in comparing his treatment with those white cranemen who were demoted for safety reasons rather than with those white cranemen with safety violations who were not demoted.
This court recently had occasion to review the principal Supreme Court decisions which set forth the appropriate procedure to be followed in determining whether plaintiff has proved discrimination in violation of Title VII.*fn1 In Kunda v. Muhlenberg College, No. 79-1135, slip op. at 18 (3d Cir. Feb. 19, 1980), we noted that in cases alleging disparate treatment, when plaintiff produces sufficient evidence to establish a prima facie case, the burden shifts to defendant to articulate some legitimate nondiscriminatory reason for the employment action. The burden of proof remains with plaintiff who must, to prevail, prove that the reason articulated was pretextual.
Although cases are analyzed in terms of these three phases, there is no requirement that the evidence be introduced in such a compartmentalized form. Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 (3d Cir. 1979). Thus, it is possible that the plaintiff's evidence relevant to the question of pretext can be presented as part of plaintiff's initial evidence going to the prima facie case itself. It is also possible that one party's evidence and proof may be developed in the context of the other party's case, such as by cross-examination. Although we have never been technical about the order in which the evidence is developed, it is necessary that the trial court make clear findings of fact as to each of the essential phases of the case, so that they can be examined in light of the evidence on record and the applicable legal principles. H. Prang Trucking Co. v. Local Union No. 469, 613 F.2d 1235, 1239 (3d Cir. 1980); O'Neill v. United States, 411 F.2d 139 (3d Cir. 1969).
In this appeal the court's finding that plaintiff had established a prima facie case is no longer in issue. Similarly, since the court found that defendant's employment decisions were rational and nondiscriminatory safety measures, this subsumes a finding that defendant met the lesser burden of articulating a legitimate nondiscriminatory reason for the actions. There is no question that employment decisions may be made on the basis of safety considerations without violating the proscriptions of Title VII. "(T)he employer may rebut a prima facie case of the employee by showing that the maintenance of safety and efficiency requires the practice which obtains." Muller v. United States Steel Corp., 509 F.2d 923, 928 (10th Cir.), cert. denied, 423 U.S. 825, 96 S. Ct. 39, 46 L. Ed. 2d 41 (1975). Concern about the safety of co-workers or the general public may well be one of the leading legitimate non-discriminatory reasons that can be offered. See New York City Transit Authority v. Beazer, 440 U.S. 568, 587 n.31, 99 S. Ct. 1355, 1366 n.31, 59 L. Ed. 2d 587 (1979). Patently, an employer responsible for life and property used in production must be given leeway of judgment as to the appropriate safeguard measures to employ.
While safety is a legitimate basis for an employment decision, a principle not challenged by the appellant in this case, the fact that safety considerations may have been involved does not in itself insulate the decision from a finding of discrimination. Appellant argues that at issue in this case are not the safety or disciplinary rules per se but their application in more severe fashion to black workers than to white workers. Plaintiff is entitled to demonstrate that a facially neutral decision was in fact pretext for discriminatory treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 1825, 36 L. Ed. 2d 668 (1973). Particularly relevant to such a showing would be evidence that white employees with comparable records were not similarly treated. Id.
Appellant attempted to meet that burden in this case with evidence that white cranemen were treated less harshly. The trial court rejected appellant's contention by finding that white cranemen of comparable safety records were also demoted. Although the court did not label its finding in terms of pretext, we view its conclusion as a finding that appellant failed to sustain his burden of showing that the safety reasons were pretextual in view of the demotion of similarly situated whites. Appellant has two arguments directed to this finding: first, that it was clearly erroneous to have found that the three whites who were demoted were comparable to plaintiff; and second, that the court's finding of no pretext is legally insufficient because the court failed to consider evidence showing that there were comparable whites who were not demoted or disciplined.
Appellee argues that it is evident from the record that the demotion and disciplinary suspension imposed on Worthy must be viewed in the context of his entire safety record; that discipline was imposed on him in sequential fashion beginning with a warning and culminating in the ten-day suspension and demotion; and most significantly, that no other craneman had a safety record as serious as that of Worthy because he ...