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HILL v. BETHLEHEM STEEL CORP.

October 25, 1989

RONALD S. HILL
v.
BETHLEHEM STEEL CORPORATION, et al. WALTER S. HUCALUK v. BETHLEHEM STEEL CORPORATION, et al.



The opinion of the court was delivered by: HUYETT, 3RD

 DANIEL H. HUYETT, 3rd, UNITED STATES DISTRICT JUDGE

 Plaintiffs, Ronald S. Hill and Walter S. Hucaluk, filed a Motion for Reconsideration *fn1" and a Motion for Relief from Judgment from my Memorandum and Order dated June 2, 1989 granting defendants' motions for summary judgment. For the reasons set forth below, I shall deny both motions.

 I.

 Plaintiffs contend that the recent Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), substantially alters the employer's burden of proof in an employment discrimination case. *fn2" In light of Price Waterhouse, plaintiffs contend that it is no longer sufficient for an employer to rebut a prima facie case of age discrimination by merely articulating a nondiscriminatory reason for discharge. In essence, plaintiffs argue that I erred in applying the burden-shifting method of proving discrimination that was established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

 The decision in Price Waterhouse applies to cases in which it has been shown that an employment decision resulted from a mixture of legitimate and illegitimate motives. 109 S. Ct. at 1781. In other words, Price Waterhouse only applies to "mixed motive" cases. A mixed motive is one in which the challenged employment action is the result of both legitimate business reasons and admittedly prohibited discriminatory considerations.

 Pursuant to Price Waterhouse, if a plaintiff proves through direct evidence that an employment decision was motivated in part by an illegitimate reason, then the employer/defendant may "avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the . . . [illegitimate reason] into account." Id. at 1795. In a mixed motive case, the burden of persuasion shifts to the employer/defendant to prove that it would have made the same decision in the absence of discrimination. Id. at 1788.

 Because such direct evidence of discrimination is often difficult to obtain, the Supreme Court established in McDonnell Douglas a method of proving discrimination through the use of circumstantial evidence. In Trans World Airlines v. Thurston, 469 U.S. 111, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985), the Court stated that the "shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.'" Id. at 121 (emphasis added).

 Under the method of proof set forth in McDonnell Douglas, and refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. 450 U.S. at 252-54. Once the plaintiff succeeds in establishing a prima facie case, the burden of production shifts to the defendant to articulate a legitimate non-discriminatory reason for the employer's conduct. Id. at 253, 254-56. Once the defendant has rebutted the plaintiff's prima facie case, the burden of production shifts back to the plaintiff to prove by a preponderance of the evidence that the defendant's proffered non-discriminatory reasons are pretextual or unbelievable. Id. at 253, 256. Under this method of proof, the burden of persuasion always remains with the plaintiff. Id. at 256.

 In his plurality opinion in Price Waterhouse, Justice Brennan specifically stated that "our holding casts no shadow on Burdine, in which we decided that, even after a plaintiff has made out a prima facie case of discrimination under Title VII, the burden of persuasion does not shift to the employer to show that its stated legitimate reason for the employment decision was the true reason." Id. 109 S. Ct. at 1788 (emphasis added) (citing Burdine, 450 U.S. at 256-58). Consequently, it is clear that Price Waterhouse did not overturn McDonnell Douglas, upon which I relied in my Memorandum and Order. The only issue that I must decide, therefore, is whether the present case is a mixed motive case to which the decision in Price Waterhouse is applicable.

 In Price Waterhouse, there was direct evidence that the employer's decision not to make plaintiff Hopkins a partner was based upon the legitimate reason that her interpersonal skills were lacking as well as the illegitimate reason that she was a woman. The district court found that there were clear signs that some of the partners reacted negatively to Hopkins' personality because she was a woman. Id. at 1782. There was also testimony in the record that, in deciding to deny plaintiff a promotion to partner, credence was given to partners' comments which resulted from sexual stereotyping. Id. The coup de grace, as the Court called it, was delivered by Thomas Beyer who, while explaining to Hopkins the Policy Board's reason for placing her candidacy for partner on hold, advised her that she should "'walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.'" Id. (citing the district court opinion, Hopkins v. Price Waterhouse, 618 F. Supp. 1109, 1117 (D.D.C. 1985)). The district court found that gender played a motivating part in the employment decision not to make the plaintiff a partner and that the employment decision was based on a mixture of legitimate and illegitimate reasons.

 In the present case, unlike Price Waterhouse, there is no direct evidence of discrimination against the plaintiffs based upon their age. Memorandum and Order at 6-7. This is the reason that I applied the McDonnell Douglas method of proving discrimination through circumstantial evidence. *fn3" Memorandum and Order at 7. Therefore, I conclude that the present case is not a mixed motive case because the plaintiffs have failed to prove that their age, an illegitimate reason, played a motivating part in the employment decision to discharge them. As a consequence, Price Waterhouse does not apply to this case.

 II.

 Next, plaintiffs contend that the statistical proof presented in this case establishes that defendants' proffered legitimate reason for discharging the plaintiffs is pretextual. In making this argument, plaintiffs allege that the Affidavit of George Oplinger (Exhibit E to Defendants' Summary Judgment Motion in Hill), upon which I relied in granting the defendants' motions for summary judgment, ...


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