EBEL, Circuit Judge.
This Title VII case is before us on appeal from a district court judgment that the Appellant had failed to prove at trial that his employment termination resulted from disparate treatment based on national origin. The EEOC argues on appeal that it proved actionable discrimination when it established, and the district court found, that the defendant disciplined less severely several non-minority employees who had committed infractions that were of equal seriousness. However, the district court further held that the plaintiff had failed to prove that these differences in treatment were the result of intentional discrimination on the basis of a protected class. Contrary to the position urged upon us by the EEOC, we hold that a mere finding of disparate treatment, without a finding that the disparate treatment was the result of intentional discrimination based upon protected class characteristics, does not prove a claim under Title VII. Accordingly, we affirm.
Edward Perez and a coworker, Ronald Chambers, were involved in an altercation in December 1987 while travelling in a truck owned by their employer, the Flasher Company ("Company"). While en route to a job site, the two men began to quarrel and exchanged racial epithets. Perez struck Chambers, who was driving, and the car swerved to the side of the road. Chambers later drove to the next town and called his supervisor to report the incident. Perez
The Equal Employment Opportunity Commission brought an employment discrimination action as a result of the firing. It alleged that the Company fired Perez because of his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).
1. Chambers accident: A verbal reprimand was given to two employees after they caused damage to a Company truck. The employees had been drinking beer and a non-employee passenger was in the truck in violation of Company rules.
2. Green/Langrehr altercation: An employee was suspended without pay for pushing a fellow employee in the course of horseplay. The push caused the latter employee to fall against a truck and separate his shoulder.
3. Lashley/motorist incident: An employee was terminated for his involvement in an altercation with a motorist while on duty. The termination was later revoked when the employee apologized to the motorist and paid his medical bills, and the motorist accepted partial blame for the incident.
4. Ray/Schlittenhardt altercation: A verbal reprimand and warning were given to two employees for fighting. The altercation took place off Company property and off Company time. The employees were warned that they would be terminated if they were caught fighting again.
5. Barton DUI incident: A reprimand and demotion was given to an employee who was charged with driving a Company truck during non-working hours while under the influence of alcohol.
The district court found that the infractions in incidents 1, 3, and 5 above were "at least as serious" as the incident involving Perez. Because the non-minority employees involved in those incidents were disciplined less seriously than Perez, the district court concluded that the EEOC made out a prima facie case of disparate treatment under the first prong of the test established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
The district court next concluded that the Company had articulated a facially nondiscriminatory reason for its decision to terminate Perez. The reason given was that Perez had violated a company rule that an employee inflicting personal injury on another employee in the course of company business will be subject to immediate dismissal. The district court found that Perez's
Finally, the district court concluded that the EEOC had failed to prove intentional discrimination against Perez because of his national origin, notwithstanding the incidents of disparate treatment between him and non-minority employees who had committed infractions that were at least as serious. Hence, the district court entered judgment for the defendant. We affirm.
II. Legal Analysis
A. General Framework.
The framework for analyzing claims under Title VII is well established. This Circuit has adopted the burden-shifting format set out in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As step one, the plaintiff is required to prove a prima facie case. In a disparate treatment claim relating to termination for violation of a work rule, a prima facie case is established once the plaintiff shows "(i) that [the plaintiff] belongs to a [protected class]; (ii) that he was discharged for violating a work rule ...; and (iii) that similarly situated non-minority employees ... were treated differently." McAlester v. United Air Lines, 851 F.2d 1249, 1260 (10th Cir.1988). The infractions giving rise to the comparison need not involve exactly the same offenses; they need only be of comparable seriousness. Id. at 1261.
Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824. The defendant's burden is merely to articulate through some proof a facially nondiscriminatory reason for the termination;
Once the defendant has set forth a facially nondiscriminatory reason for the termination, the plaintiff then assumes the normal burden of any plaintiff to prove his or her case at trial. Here, the EEOC was required to prove that Perez's termination was the result of intentional discrimination based on Perez's national origin. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Furnco Construction v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); Carey v. United States Postal Service, 812 F.2d 621, 625-26 (10th Cir.1987). At this point in the proceeding, which is often referred to as the third step in the McDonnell Douglas analysis, the presumption in plaintiff's favor that arose from the establishment of a prima facie case simply "drops from the case." Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10; Curry, 730 F.2d at 601.
The only purpose for the three-step framework in McDonnell Douglas is
The ultimate finding of whether there was intentional discrimination against a protected class is considered a question of fact for the district court to decide. Pullman-Standard, 456 U.S. at 287-88, 102 S.Ct. at 1789-90. Appellate review is under the clearly erroneous standard. Pitre, 843 F.2d at 1266; Silberhorn v. General Iron Works, 584 F.2d 970, 971 (10th Cir.1978).
B. Step Two in the McDonnell Douglas Analysis Merely Requires the Defendant to Articulate by Evidence a Facially Nondiscriminatory Reason for the Termination. No Comparative Justification is Required.
The EEOC mistakenly assumes that a defendant must show a nondiscriminatory reason for the difference in treatment between the plaintiff and the non-minority comparison employees in order to satisfy step two of the McDonnell Douglas analysis. The EEOC argues that simply saying Perez was fired for violating a rule was legally insufficient without addressing how that rule was applied to others. The EEOC is mistaken as this misapprehends both the purpose for step two of the McDonnell Douglas analysis and erroneously seeks to put the burden on the defendant to prove absence of illegal discrimination rather than requiring the plaintiff to prove such discrimination.
Step two only requires that the defendant explain its actions against the plaintiff in terms that are not facially prohibited by Title VII. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (holding that the defendant must "articulate some legitimate, nondiscriminatory reason for the employee's rejection"); Board of Trustees v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 295-96, 58 L.Ed.2d 216 (1978) ("[U]nder Furnco and McDonnell Douglas the employer's burden is satisfied if he simply `explains what he has done' or `produc[es] evidence of legitimate nondiscriminatory reasons.'")
The articulation of a facially, nondiscriminatory reason under the second step defines the parameters of the trial, as the plaintiff then knows the precise reason that he or she may try to show is only a pretext for an illegal discriminatory motive. By articulating the reasons for the plaintiff's termination, the defendant eliminates a myriad of possible reasons that would otherwise have to be addressed. That is, we require the defendant to identify and enunciate the reasons for the termination at the outset, because there is no limit to the potential number of reasons that could be raised at trial. Otherwise litigation of discrimination claims would be needlessly confused and delayed.
The EEOC's position would force the defendant in a Title VII case to address the question of animus at the second stage before the plaintiff is required to put on his or her proof of discriminatory animus at stage three. It would, in essence, ask the defendant to disprove plaintiff's case before plaintiff is required to make the affirmative case. This would be an improper burden to place upon the defendant and would undermine the system of proof and burdens established by McDonnell Douglas. The presumption arising under the first prong of McDonnell Douglas is a relatively weak inference that corresponds to the small amount of proof necessary to create it. See Barbara Schlei & Paul Grossman, Employment Discrimination Law at 1316-17 (2d ed. 1983). Under the McDonnell Douglas scheme, as properly applied, the level of proof necessary to rebut that presumption in step two is also small. See id. The reason for any disparity in treatment is to be addressed in the third stage of the McDonnell Douglas test. To force the defendant to answer that question in the second stage perverts the order of presentation of proof and the allocation of burdens of proof conceived under the McDonnell Douglas framework.
In this case the Company offered evidence that it terminated Perez because of Perez' altercation with Chambers during which Perez struck Chambers while Chambers was driving, causing the truck to swerve off the road. This is a facially nondiscriminatory reason for the action taken against the plaintiff. Thus, the Company's reason fully satisfies step two of McDonnell Douglas.
C. Unexplained Disparity
7 in Treatment Between a Minority Employee and Non-Minority Employees Does Not Necessarily Establish Illegal Discrimination As A Matter Of Law.
Title VII makes it unlawful for "an employer ... to fail or refuse to hire or ... to discriminate against any individual with respect to ... employment, because of such individual's race, color, religion, sex, or national origin...." 42 U.S.C. § 2000(e)-2(a)(1) (emphasis added). Title VII does not make unexplained differences in treatment per se illegal nor does it make inconsistent or irrational employment practices illegal. It prohibits only intentional discrimination based upon an employee's protected class characteristics.
Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ even among seemingly similar situations. The law does not require, nor could it ever realistically require, employers to treat all of their employees all of the time in all matters with absolute, antiseptic, hindsight equality.
What the law does require is that an employer not discriminate against an employee on the basis of the employee's protected class characteristics. Discrimination based on race, color, religion, sex, or national origin is not only wrong, it is illegal. Proof of illegal discrimination begins in step one of the McDonnell Douglas analysis with proof that a protected person has been treated less favorably than other employees in comparable situations. But it does not end there. See Furnco, 438 U.S. at 576, 98 S.Ct. at 2949. If that step, by itself, established ultimate liability there would be no need for steps two and three. As pointed out above, in step two the employer must offer a facially nondiscriminatory explanation for its action against the plaintiff. If the defendant fails to offer such a reason, the defendant loses. Assuming a facially non-discriminatory reason is advanced for the discipline against the plaintiff, the matter then moves to step three, where the plaintiff must prove that the disparity in treatment was based upon the plaintiff's race, religion, sex, or national origin rather than upon either a valid nondiscriminatory reason or upon no particular reason at all.
It is error to assume, as does the EEOC, that differential treatment between a minority employee and a non-minority employee that is not explained by the employer in terms of a rational, predetermined business policy must be based on
Of course, the plaintiff may argue that irrational or unexplained differential treatment is secretly motivated by illegal discrimination, and if the plaintiff persuades the fact finder of that, the plaintiff will satisfy that portion of his or her burden of proof in a Title VII disparate treatment claim. See Furnco, 438 U.S. at 578, 98 S.Ct. at 2950. Indeed, even punishment administered for violating a valid, facially nondiscriminatory policy may be motivated by an illegal discriminatory intent, and if so, it is actionable under McDonald v. Santa
Indeed, even a finding that the reason given for the discipline was pretextual, does not compel such a conclusion, unless it is shown to be a pretext for discrimination against a protected class. A pretextual reason may be advanced to conceal a wide range of possible motivations, but Title VII only reaches pretextual cases where the advanced reason is shown to be a pretext for a discriminatory animus based upon a person's protected status. Benzies v. Illinois Dep't of Mental Health & Developmental Disabilities, 810 F.2d 146, 148 (7th Cir.), cert. denied, 483 U.S. 1006, 107 S.Ct. 3231, 97 L.Ed.2d 737 (1987). Burdine makes clear that the plaintiff must show not merely that the proffered reasons are pretextual but that they are "a pretext for discrimination." 450 U.S. at 253, 101 S.Ct. at 1093 (emphasis added); see Galbraith v. Northern Telecom, Inc., 944 F.2d 275, 283 (6th Cir.1991) ("proving that an employer's proffered reason for discharging an employee is a pretext does not establish that it is a pretext for racial discrimination"), cert. denied, ___ U.S. ___, 112 S.Ct. 1497, 117 L.Ed.2d 637 (1992); Holder v. City of Raleigh, 867 F.2d 823, 828 (4th Cir.1989) ("[A] finding that the reasons proffered by defendants were, in some general sense, `unworthy of credence' does not of itself entitle plaintiff to prevail. ... The reason for their lack of credence must be the underlying presence of proscribed discrimination.") (citation omitted); Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir.) (distinguishing pretext, pretext for discrimination, and mistakes or irregularities), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987). Merely finding that people have been treated differently stops short of the crucial question: why people have been treated differently. While comparing specific disciplinary actions can give rise to an inference of illegal discrimination, it need not do so. Proffered reasons may be a pretext for a host of motives, both proper and improper, that do not give rise to liability under Title VII.
Benzies, 810 F.2d at 148.
Here, the district court found that the EEOC had failed to prove that the defendant terminated Perez because of his national origin. In addition, the district court explicitly found that the reason given for terminating Perez — that he struck a co-employee while he was driving a car, causing the car to go into a ditch — was not a pretext. Findings of Fact and Conclusions of Law, No. CIV-90-1600-P at 30-31. That reason is not prohibited by Title VII.
Although the district court found that several of the comparison incidents involved conduct at least as serious as Perez's, it further found that the discrepancies in punishment administered in those situations did not give rise to an inference of illegal discrimination based on national origin.
Here, upon all of the evidence, the district court concluded that the EEOC failed to prove by a preponderance of the evidence that Perez was terminated because of his national origin. We have reviewed the record before us and we conclude that this finding was not clearly erroneous. The judgment of the district court is therefore AFFIRMED.
"It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise 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. ..."
The burden under the second step of McDonnell Douglas, properly conceived, does establish clash. However, that clash comes in the third step of the analysis where the fact-finder is charged to determine which of the reasons for the defendant's actions it believes: the discriminatory reason advanced by the plaintiff or the reasons proffered by the defendant under step two.
Depending upon the reasoning advanced by the defendant, courts have sometimes articulated the second step in McDonnell Douglas as a requirement that the defendant provide a "nondiscriminatory explanation for the apparently discriminatory result." McAlester, 851 F.2d at 1260; see Drake, 927 F.2d at 1160. However, in a more precise manner, step one has established the "apparently discriminatory result" and in step two the defendant need only advance a facially nondiscriminatory reason for its action against the plaintiff; i.e., a reason which does not, on its face, violate Title VII. If that reason is applied only against minorities, has a disparate impact upon minorities, or is otherwise a sham, that comparative analysis occurs under step three where the plaintiff has the burden of proof.