On Appeal from the United States District Court for the Western District of Pennsylvania.
Adams, Hunter, and Garth, Circuit Judges. Adams, Circuit Judge, dissenting.
Plaintiff Ida Mary Lewis brought suit against the University of Pittsburgh and its Bookstore under section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1976), and under 42 U.S.C. §§ 1981, 1983 (1976), claiming that she was denied a promotion because of her race. Her claims under sections 1981 and 1983 were heard by a jury, and her Title VII claim was decided in a bench trial by the district court judge. Both factfinders found for defendants on the merits. We affirm.
Ida Mary Lewis, a black woman, has been employed at the Book Center of the University of Pittsburgh since 1965. In 1967, she was promoted from clerk to Buyer in the Trade Book Department. She again became a clerk in 1975 when one Buyer position in the Trade Book Department was eliminated in a budgetary move.*fn1
In October, 1976, Lewis applied for a vacant position as Assistant Buyer in the Trade Book Department. The position instead went to Jean Aiello, a white woman who had been employed with the Bookstore since 1972. Lewis alleged that she was better qualified for the position than Aiello and that the reason she was denied promotion was because she is black.
As the district court findings reveal, Lewis was 58 years old, had graduated from Perry High School in 1942, and from Carnegie Institute of Technology (now Carnegie Mellon University) in 1947 with a Bachelor's degree in History and English. She then enrolled at the University of Pittsburgh, receiving her Master's degree in History in 1950. She returned to Carnegie in 1961 and received a Master's degree in Library Science. In the fall of 1964, Ms. Lewis began studying for her Ph.D. in History. She was forced to abandon that plan, however, due to lack of finances and the illness of her parents.
Ms. Aiello, on the other hand, graduated from high school in 1970. Following graduation, she enrolled in the University of Pittsburgh for two years, but had to withdraw for financial reasons. Ms. Lewis had previous experience as a Buyer, while Aiello worked at the Book Center as a sales clerk.
The defendants contended that Lewis was denied the position as Assistant Buyer because she had a poor history of work habits, bookkeeping, and inventory control practices. These contentions were supported by the testimony of Russell Kierzkowski and Dwight Fong, the two current Buyers for the Trade Book Department. Kierzkowski stated that, when Lewis had previously been a Buyer (prior to 1975), Lewis had neglected to return unused books to the publishers on time, with the result that they had to be sold at a loss. Kierzkowski testified that he personally interviewed and assigned Aiello to help him eliminate the backlog of unused books. He claimed that even after the backlog had been eliminated, Lewis again failed to complete returns properly, and Aiello was assigned to do the work for a second time.
Kierzkowski also stated that Lewis had not adequately kept stock control cards in her files, and had not conducted regular inventory checks to see which books should be reordered. Mr. Fong testified that, at approximately the same time, he discovered that the paperback technical books had also not been returned or reordered, and that much of the inventory was discolored, worn, and dusty. The district court judge's findings with respect to some of these matters are set forth in the margin.*fn2
The basic question which was presented at trial, therefore, was whether, despite Lewis' superior paper credentials, she was denied promotion because of her alleged lapses as described by Messrs. Fong and Kierzkowski, or whether the decision was based on race.
The jury's verdict on the section 1981 and section 1983 claims was in the form of special interrogatories:
1. Was plaintiff, Ida Mary Lewis, qualified in October, 1976, for the position of Assistant Buyer in the Trade Book Department?
2. Was plaintiff, Ida Mary Lewis, more qualified in October, 1976, for the position of Assistant Buyer in the Trade Book Department than Jean Aiello?
3. Would plaintiff, Ida Mary Lewis, have been promoted to the position of Assistant Buyer but for the fact that she is black?
Thus, the jury, while finding Lewis to have qualifications superior to those of Aiello, nonetheless found that Lewis was not denied promotion because of her race.
As required by the statute, the district court judge entered separate findings of fact on the Title VII claim.*fn3 He concluded that:
[Lewis] failed to prove by a preponderance of the evidence that the reasons for the denial of the promotion as articulated by Messrs. Fong and Kierzkowski were a mere " cover up" or pretext for a racially discriminatory intent. Ms. Lewis would have been denied the promotion even if she were not black. Her poor work history, not her race, was the cause or motivating factor of the denial.
App. at 47 (emphasis in original). He therefore granted judgment to defendants on the Title VII claim and entered judgment for defendants on Lewis' 1981 and 1983 claims based upon the jury's response to Interrogatory No. 3.
Lewis has raised a number of issues on this appeal. After carefully examining the record and her contentions, we conclude that the district court did not err in entering judgment for the defendants on all claims. One issue, however, requires discussion. Lewis charges that the trial judge was incorrect in instructing the jury as to the level of causation required for her to succeed on her claims. We are satisfied, as was the district court, that Title VII and sections 1981 and 1983 all require a showing of "but for" causation in an employment discrimination suit.
To establish employment discrimination, it must be shown that the employer bore a racially discriminatory animus against the employee, and that this animus manifested itself in some challenged action, whether it be dismissal, failure to promote, or failure to hire. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 334-35, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977)("ultimate factual issues are . . . simply whether there was a pattern or practice of . . . disparate treatment and, if so, whether the differences were racially premised"); General Electric Co. v. Gilbert, 429 U.S. 125, 137 n.14, 50 L. Ed. 2d 343, 97 S. Ct. 401 n.14 (1976) (Plaintiffs "who seek to establish discrimination have the traditional civil litigation burden of establishing that the acts they complain of constituted discrimination in violation of Title VII"); Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir. 1983) ("plaintiff alleging disparate treatment . . . bears the ultimate burden of persuading [the trier of fact] that his treatment was caused by purposeful or intentional discrimination").
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the Supreme Court announced the manner in which discrimination must be established: (1) the employee must show a prima facie case of discrimination,*fn4 (2) once a prima facie case has been shown, the burden shifts to employer to articulate some non-discriminatory reason for the challenged action, (3) if such a facially legitimate reason is proffered, the employee must then bear the burden of demonstrating that the reason given by his employer is in fact merely a pretext, i.e. a fiction which obscures the reality of racial discrimination.
It is important to recognize that McDonnell Douglas does not in any way relieve the employee of his basic burden of proof. As the Court explained in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. . . . The McDonnell Douglas division of intermediary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question." Burdine, 450 U.S. at 253. At each stage in the procedure, the issues are winnowed and narrowed, and the factual inquiry proceeds to a new level of specificity. Id. at 255. When the litigation reaches the third and last stage, the plaintiff's burden in showing that the proffered justification is merely a pretext "merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination." Id. at 256.
It is in this third step of the McDonnell Douglas analysis that the issue of causation is most directly posed. The Supreme Court took great pains to emphasize in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976) that nothing has altered the plaintiff's burden in showing that intentional "but for" discrimination exist. In focusing on "but for" causation, the Supreme Court stated that:
The use of the term "pretext" in this context does not mean, of course, that the Title VII plaintiff must show that he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies [in work-related performance]; . . . no more need be shown than that race was a "but for" cause.
Id. at 282 n.10 (emphasis added).
We find no indication in any decisions of the Supreme Court, or of any other court, that signals any deviation from the use of the "but for" test of causation.*fn5 Accord, Mack v. Cape Elizabeth School Board, 553 F.2d 720 (1st Cir. 1977); see League of United Latin American Citizens (LULAC) v. City of Salinas Fire Department, 654 F.2d 557 (9th Cir. 1981). The effort by the dissent to suggest a test other than the Supreme Court's "but for" test is not persuasive. See Dissenting Opinion, Typescript at 5-6. Judge Adams, writing in dissent, cites to United States v. Hayes International Corp., 6 FEP Cases (BNA) 1328 (N.D. Ala. 1973), aff'd without opinion, 507 F.2d 1279 (5th Cir. 1975), in support of his argument. However, that case was decided and affirmed prior to the Supreme Court's pronouncement in 1976 of the "but for" test found in Santa Fe. Moreover, in operation, the Hayes "any part" standard, although not artfully articulated, can be explained as part of the "but for" analysis. Judge Adams' dissent also cites to Brodin, The Standard of Causation in Mixed-Motive Title VII Actions: A Social Policy Perspective, 82 Colum. L. Rev. 292 (1982). The Brodin article, however, concludes with a test for causation no different than the Supreme Court's test, and the test that we adopt here, since Brodin would require that the employee show that the "same decision" would not have been reached absent racial animus.
Lewis argues that she need only show that race was a "substantial" or "motivating" factor leading to the defendants' decision not to promote her to assistant buyer.*fn6 In support for this proposition, Lewis cites, inter alia, Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977) (alleging abridgement of first amendment rights by government employer).
In Mt. Healthy, however, Justice Rehnquist specifically rejected the proposition that, under § 1983, it was enough to show that protected constitutional activity was a "substantial factor" leading to the challenged action. Id. at 285. Mt. Healthy merely found that, after an initial showing that protected activity was a "substantial" or "motivating factor," the burden shifted to defendants to show that the same action would have occurred even in the absence of such activity. Id. at 287. It therefore did not deviate from the requirement of "but for" causation; rather, its only effect was to allocate and specify burdens of proof. In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977), the Court stated that "proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necesarily have required invalidation of the challenged decision. Such a proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered." Id. at 270 n.21.
Lewis also calls to our attention Whiting v. Jackson State University, 616 F.2d 116 (5th Cir. 1980), and Niederhuber v. Camden County Vocational & Technical School District Board of Education, 495 F. Supp. 273 (D.N.J. 1980), aff'd 671 F.2d 496 (3d Cir. 1981), as support for the test which she argues should be employed. Niederhuber's analysis does not differ from Mt. Healthy's, on which it relies. Whiting, which referred to Arlington Heights but not to Mt. Healthy, noted that in proving pretext under the third part of the McDonnell Douglas analysis, "Title VII is not violated simply because an impermissible factor plays some part in the employer's decision. The forbidden taint need not be the sole basis for the action to warrant relief, but it must be a significant factor." Id. at 121 (emphasis in original). Lewis contends that this language adopts a test which is less stringent than the traditional "but for" requirement.
We do not read Whiting as departing from the "but for" causation requirement. By definition, a "significant" factor is one which makes a difference in the result. Conversely, if an action would have been taken regardless of race, any discriminatory factor could hardly be called "significant." We can discern little difference in the result between a "significant factor" test and the "but for" test. Indeed, as the term "significant factor" is employed in Whiting, we would deem it to be the functional equivalent of the "but for" test which the Supreme Court has preferred. For ourselves, we too prefer the Supreme Court's concept of "but for," as we regard it as the more analytically measurable, and a concept which can be employed more easily by a jury. At ...