34 F.

3d 1024
66 Fair Empl.Prac.Cas. (BNA) 53

Sammy WILSON, Plaintiff-Appellee,

v.
AAA PLUMBING POTTERY CORPORATION, DefendantAppellant.
No. 93-6406.

United States Court of Appeals,

Eleventh Circuit.
Oct. 11, 1994.

Ralph K. Strawn, Jr., Gadsden, AL, for appellant.

Mary A.R. Stackhouse, Philip E. Miles, William R. Willard, Jr., Gadsden,
AL, for appellee.
Appeal from the United States District Court for the Northern District of
Alabama.
Before HATCHETT and EDMONDSON, Circuit Judges, and SMITH* ,
Senior Circuit Judge.
HATCHETT, Circuit Judge:

Applying the rule announced in Mitchell v. Worldwide Underwriters Insurance

Co., 967 F.2d 565 (11th Cir.1992), in the context of this race-discrimination
case, we affirm the district court's ruling that appellant violated Title VII of the
Civil Rights Act of 1964.

FACTS
2

In 1978, AAA Plumbing Pottery Corporation (AAA) hired Sammy Wilson, an

African-American man with three years of college, as a security guard, a nonunion, hourly rate position without profit-sharing benefits. In 1983 and 1984,
AAA hired Gene Minton and J.D. Robinson, two younger white men, who

Wilson helped train as security guards. Although neither Minton nor Robinson
possessed any college training, AAA promoted both to the position of foreman,
a salaried position with profit-sharing benefits.
3

In 1985, AAA decided to stop employing security guards and began using
foremen to walk the rounds. Pursuant to the change, AAA transferred Wilson to
a full-time janitor position, a non-union, hourly rate job without profit sharing.
AAA did not reduce Wilson's pay, and he worked as a janitor for approximately
two years. In about 1988, AAA installed entrance-focused surveillance cameras
and asked Wilson to assist the foremen in making rounds similar those he made
as a security guard. AAA believed that splitting Wilson's time between janitor
and security guard better utilized his hours. Although Wilson received annual
raises, he did not receive any increase associated with the increased duties.

On September 20, 1990, AAA fired Wilson, after deciding to contract for
janitorial services, stating that it lacked sufficient work to keep Wilson fulltime. For approximately one week after firing Wilson, AAA employed Dana
Vaughn, the daughter of one of its full-time employees, Becky Vaughn, to
perform the janitorial duties. Then, for approximately one year after firing
Wilson, AAA contracted with Heard Janitorial Services (Heard), an AfricanAmerican owned company employing African-American workers to clean the
front offices for $225 to $300 per month. After terminating its relationship with
Heard, AAA gave the janitor job to one of its own employees, Tina Norris.
When Norris no longer wished to do janitorial work, AAA gave the job to
Brandy Vaughn, another daughter of Becky Vaughn. At the time of trial,
Brandy Vaughn continued doing the janitorial work. Dana Vaughn, Brandy
Vaughn and Tina Norris are white females.

AAA never offered Wilson the janitorial job on a part-time basis, or at a

reduced salary, or another position with the company. After AAA fired Wilson,
he sought and received his company pension benefits. Since firing Wilson,
AAA has used foremen and shift supervisors to perform the security guard
functions.

PROCEDURAL HISTORY
6

On December 3, 1991, Wilson filed this lawsuit against AAA in the United
States District Court for the Northern District of Alabama, alleging race
discrimination in violation of Title VII of the Civil Rights Act of 1964 and age
discrimination in violation of the Age Discrimination and Employment Act.**

Following a bench trial, the district court concluded that based on the facts

Following a bench trial, the district court concluded that based on the facts
presented, it could not assess the quality of Wilson's work or the services
provided by "Heard or the part-time white female employees." The court also
found that AAA gave a white male supervisor, Frank Mabry, the job of
watchman (similar to security guard) when he no longer could perform his
supervisory tasks due to health problems. While working as watchman, Mabry
maintained his profit sharing eligibility. The court also found that although
Wilson performed watchman duties from 1989 to 1990, he never received
profit-sharing benefits.

The district court issued its findings of fact and conclusions of law on January
7, 1993. In its decision, the district court found that AAA did not discriminate
against Wilson in abolishing the full-time job of security guard and office
janitor, but found that AAA discriminated against him when it failed to offer
him "at least a part-time janitorial job at the same rate of pay that it could
contract for."

On February 17, 1993, the district court conducted a supplemental hearing to

consider AAA's reasons for not offering Wilson part-time work and Wilson's
claim for equitable relief. Following the hearing, the district court
supplemented its findings, concluding AAA failed to offer a nondiscriminatory
reason for its actions; and therefore, it discriminated against Wilson on the
basis of race, but not age. Based on these findings, the district court directed
AAA to pay Wilson for the period of time following his termination, October,
1990, through April, 1993, at a rate of $300 per month, and to reinstate him to
the position of janitor or a comparable part-time position as of May 1, 1993.
The district court also ruled that Wilson's hours and rate of pay remain the same
as the person last paid for doing similar work. After the district court resolved
all post-trial motions, AAA appealed.

CONTENTIONS OF THE PARTIES

10

AAA contends that the district court's finding that its failure to offer Wilson the
part-time janitor position constitutes intentional race discrimination is contrary
to the law of this circuit and lacks support in the record. Wilson contends that
the district court's finding of intentional race discrimination was not clearly
erroneous and was based upon the proper legal standards under Title VII.

ISSUE
11

Although AAA attempts to fragment this case into several sub-issues, at the
core of the dispute lies one question: whether the district court's finding that
AAA discriminated against Wilson on the basis of race when it failed to

consider him for the position of part-time janitor is contrary to the facts and to
the law.
DISCUSSION
12

Title VII of the Civil Rights Act of 1964, provides that it is unlawful for an
employer "to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e2(a)(1) (1988). Although a plaintiff may establish a prima facie case of
discrimination under Title VII with direct evidence of discriminatory intent or
statistical proof of a pattern of discrimination, the more common approach is to
apply the well-established methodology from McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).
Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir.1989),
cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990). Under
the McDonnell Douglas test, a prima facie case of race discrimination is
established with circumstantial evidence when a plaintiff: (1) belongs to a racial
minority; (2) was subjected to adverse job action; (3) was replaced by someone
outside the protected group; and (4) was qualified to do the job. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. See Verbraeken, 881 F.2d at 1045
(11th Cir.1989) (applying modified McDonnell Douglas test to establish prima
facie case of age discrimination under Age Discrimination in Employment Act).

13

The methodology outlined in McDonnell Douglas, is not subject to rigid

application, rather it envisions a flexible approach and lends itself to application
in a wide variety of circumstances. Carter v. City of Miami, 870 F.2d 578, 58283 & n. 12 (11th Cir.1989). Thus, in situations such as this, where the employer
reduces its workforce and does not replace the discharged employee, "the fourth
prong of the prima facie case is altered to require the plaintiff to 'produce
evidence circumstantial or direct, from which the factfinder might reasonably
conclude that the employer intended to discriminate in reaching the decision at
issue.' " Mauter v. Hardy Corp., 825 F.2d 1554, 1557 (11th Cir.1987) (quoting
Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. Unit B 1981),
cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982)).

14

Altering the fourth prong of the McDonnell Douglas test for application to
reduction in force cases, permits a prima facie showing of discrimination if the
plaintiff: (1) demonstrates membership in the protected group; (2) proves
discharge; (3) shows qualifications for another position at the time of
discharge; and (4) produces evidence which allows a fact-finder to reasonably
conclude that the employer intended to discriminate on the basis of race in

failing to consider the plaintiff for another position. See Mitchell v. Worldwide
Underwriters Ins. Co., 967 F.2d 565, 567-68 (11th Cir.1992) (applying
modified McDonnell Douglas test to reduction in force, age discrimination
case); Verbraeken, 881 F.2d at 1045-46. Although both Mitchell and
Verbraeken involved age discrimination claims, their extension of the four
pronged test to reduction in force cases applies to other forms of discrimination
because the McDonnell Douglas methodology must be applied flexibly. Rigid
application would negate the purpose of the test. Carter, 870 F.2d at 582-83 &
n. 12. Thus, the modified McDonnell Douglas test for reduction in force cases
is equally applicable to cases involving race discrimination.
15

Wilson satisfied the first three elements of Mitchell because he is AfricanAmerican, and he proved that AAA discharged him when it decided to contract
janitorial services, even though he performed that function without complaint
for several years. Although AAA concedes that Wilson is a member of a
protected class, and was discharged although qualified for an existing position,
it contends that "[n]o reasonable inference [of intentional discrimination] can
arise from" AAA's failure to offer him the part-time janitor position.

16

Based on the evidence presented at trial and during the supplemental hearing,
the district court found "that [Wilson] was the victim of intentional [race]
discrimination with reference to the janitorial work." These constitute "findings
of fact which will be overturned on appeal only if they are clearly erroneous."
Smith v. PAPP Clinic, P.A., 808 F.2d 1449, 1451 (11th Cir.1987). We review
the record to determine whether facts exist which are consistent with and
support the district court's findings.

17

The district court based its conclusion that AAA intentionally discriminated
against Wilson in part "on a finding of disparate treatment with regard to the
white employee [Frank Mabry] whose situation was accommodated." As
discussed above, AAA transferred Frank Mabry, a white supervisor, to the
position of watchman when he was no longer able to perform his regular duties
for health reasons. When Wilson's full-time janitor position was dissolved,
however, AAA did not accommodate Wilson in a similar manner.

18

AAA contends that its failure to accommodate Wilson is not probative of its
intent to discriminate because Mabry and Wilson were not in similar jobs or
circumstances when AAA altered the terms of their employment. We disagree.
AAA's willingness to accommodate a white employee unable to perform his
usual job functions while firing an African-American janitor capable of
performing his job functions, when contracting for janitorial service, is
circumstantial evidence of disparate treatment. As such it is probative of AAA's

intent to discriminate against Wilson.

19

In any event, the record contains other circumstantial evidence supporting the
district court's findings. During his twelve year tenure, AAA never offered
Wilson a promotion to a union position. In fact, AAA passed Wilson over on at
least two occasions to promote less experienced, less educated white employees
Wilson had helped train. Likewise, at the time it decided to contract for
janitorial services, AAA did not offer Wilson an alternative position. Moreover,
immediately after firing Wilson, AAA employed a young white woman to
perform the janitorial services. Although an African-American owned
company, employing African-American employees performed the janitorial
services for one year, AAA ultimately employed, and still employs, its own
white employees to do Wilson's old job. Finally, when offered an opportunity to
rebut the inference of intentional race discrimination, AAA failed to articulate a
nondiscriminatory reason why it refused to offer Wilson the part-time job.

20

In the aggregate, these facts constitute strong circumstantial proof of intentional

race discrimination and support the inference that AAA did not offer Wilson
the part-time janitor position because of his race. Because evidence in the
record supports the district court's findings, we hold that they are not clearly
erroneous. Smith, 808 F.2d at 1451.

21

Next, AAA contends that the Mitchell analysis does not apply in this case
because AAA did not contract for the entire job (both security guard and
janitorial duties), but only a portion of the job (the janitorial duties). We reject
this distinction because it unnecessarily constrains the prima facie methodology
of McDonnell Douglas and Mitchell by creating an inflexible rule protecting
employers from liability anytime they contract for only a portion of a job.
Carter, 870 F.2d at 582, 583. More important, such a result would undermine
the most basic purpose behind Title VII: to prevent discrimination in
employment by removing "artificial, arbitrary, and unnecessary barriers to
employment [which] ... operate invidiously to discriminate on the basis" of
race, color, religion, sex, or national origin. Griggs v. Duke Power Co., 401
U.S. 424, 430-31, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); see 42 U.S.C. Sec.
2000e-2(a)(1). Although we reject this per se rule which AAA suggests, this
decision in no way relieves plaintiffs from proving unlawful discrimination
when an employer is alleged to have failed to offer the plaintiffs a part-time
position before firing them.

22

Finally, AAA argues that the district court's finding of intentional

discrimination was improper because Wilson failed to apply for the position of
part-time janitor. This court has squarely rejected such an approach:

The
23 prima facie criteria of the McDonnell Douglas test are not intended to be rigidly
applied. In reduction-in-force cases such as the one at hand, the McDonnell Douglas
test has been further modified by eliminating the replacement requirement; because
"[i]n situations involving a reduction in force, ... the employer seldom seeks a
replacement for the discharged employee."
24

Verbraeken, 881 F.2d at 1045 (emphasis added) (citation omitted) (quoting

Mauter, 825 F.2d at 1557).

25

AAA raises several additional challenges to the district court's legal conclusions
and findings of fact. Because we have addressed the core of AAA's arguments
and its remaining contentions either lack merit or rely upon those arguments we
have already rejected, further discussion is unnecessary.

CONCLUSION
26

Because the district court's finding that AAA intentionally discriminated

against Wilson when it failed to offer him the part-time janitorial position is not
clearly erroneous and comports with the legal standards announced in Mitchell
v. Worldwide Underwriters Insurance Co., 967 F.2d 565 (11th Cir.1992), we
affirm the district court.

AFFIRMED
27

EDMONDSON, Circuit Judge, dissenting.

28

I have the bad luck to disagree with my colleagues about this case. And, I need
to protest a judgment that I am pretty sure is neither commanded by the law nor
right.1

29

Whether a company will staff itself with full-time employees, part-time

employees, independent contractors or some mix is a core business decision.
Nothing in Title VII obligates a company to choose one work force or another;
and the different kinds of work forces present different advantages and
disadvantages for business management. In this case, AAA Plumbing decided
to contract out its need for janitorial service as opposed to having the work
done, as it had been done, by a full-time employee. AAA says the decision to
use an independent contractor was motivated by a desire to cut costs: a
legitimate business reason. (The decision, according to the district court, was
cost-effective for AAA.)In the light of AAA's decision to use an independent
contractor for its janitorial service needs, the person--an African-American--

who had been employed by AAA as a janitor was let go. There is no proof or
contention that he was qualified for any other available job that AAA had then.
Under our precedents, this fact should have ended the matter. See Earley v.
Champion Int'l Corp., 907 F.2d 1077, 1082-83 (11th Cir.1990) (in reduction-inforce case, plaintiff "must show that he was qualified for another available job
with that employer; qualification for his current position is not enough"). No
Title VII violation was proved.
30

But, the district court and this court now say that the law requires an employer
to create a new job category--part-time employee for janitorial services--to
"accommodate" the man who was let go. I do not think so, especially since no
evidence in this case shows that AAA had a custom of abolishing full-time jobs
and then creating part-time jobs to accommodate whites.2

31

I agree with Mr. Justice Holmes: "[T]he most enlightened judicial policy is to
let people manage their own business in their own way, unless the ground for
interference is very clear." Dr. Miles Medical Co. v. John D. Park & Sons Co.,
220 U.S. 373, 411, 31 S.Ct. 376, 386, 55 L.Ed. 502 (1911) (Holmes, J.,
dissenting). See generally Furnco Construction Corp. v. Waters, 438 U.S. 567,
578, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978) ("Courts are generally less
competent than employers to restructure business practices, and unless
mandated to do so by Congress they should not attempt it."), Wards Cove
Packing Co., Inc. v. Atonio, 490 U.S. 642, 661, 109 S.Ct. 2115, 2127, 104
L.Ed.2d 733 (1989) ("the judiciary should proceed with care before mandating
that an employer must adopt a plaintiff's alternate selection or hiring practice").

32

The district court and this court seem to think that Title VII requires employers
to offer minority employees an opportunity to "match" an outside independent
contractor's price for the work, before the employer may contract the work out
lawfully. This law is new to me. Where does it come from? It is unexpected,
and it hits hard at management's traditional right to run a business as
management thinks best. 3

33

No amount of repeating the mantra "flexibility" justifies such judicial

interference with a business. Judicial power to interfere with a private business
is rigidly limited by the law. Mitchell v. Worldwide Underwriters Insurance
Co., 967 F.2d 565 (11th Cir.1992), and the other cases cited by today's court
have nothing to do with creating different jobs or restructuring work forces-including a change from full-time employees to part-time employees--to
"accommodate" employees who are discharged for nondiscriminatory reasons.
None of Title VII's provisions empower the courts to force businesses to be
nice to their employees. The legal basis for interfering with AAA Plumbing is,

to say the least, unclear.

34

I would reverse the district court's judgment.

Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit,
sitting by designation

**

Wilson later amended his complaint to add claims under 42 U.S.C. Sec. 1981A
and Title VII as amended by the Civil Rights Act of 1991

In general, I--like many judges--think it is, given the needs and goals of the law
and this court, useless and undesirable to express dissent, even when I believe a
decision is clearly wrong. I do dissent now and briefly set out my reasons
because I think today's judgment is unusually important or, at least, may in time
come to be seen as having an unusually important effect

Even if an isolated instance like Frank Mabry's might otherwise count for
something, Mabry's circumstances are in no way like Sammy Wilson's. For
example, Mabry's job was not abolished for business reasons

The district court's fact finding on discrimination is hard for me to follow. At

one point, the court says: "This court cannot conclude that plaintiff was a
victim of intentional discrimination with regard to the decision in 1990 to
abolish his job." Later the district court wrote that it did not intend to hold there
was no discrimination in the decision to use an outside contractor to do the
janitorial work. The district court then finds discrimination, but I believe the
fact finding is undermined by legal errors. The discrimination found was based
on the failure of the company to offer Wilson the chance to be a part-time
employee and match the independent contractor's price. Because AAA had no
duty to make such an offer, the failure to do so cannot be racially
discriminatory, particularly given the absence of a custom of making like offers
to whites. Fact finding based on an incorrect application of law is not binding
on this court. Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 855 n.
15, 102 S.Ct. 2182, 2189 n. 15, 72 L.Ed.2d 606 (1982)