27 Fair Empl.prac.cas. 1073,27 Empl. Prac. Dec. P 32,316james A. Coleman, Plaintiff-appellant,virgil Weary, Intervenor-appellant, v. Braniff Airways, Inc., Defendant-appellee, 664 F.2d 1282 (5th Cir. 1976)

James A. Coleman and Virgil Weary (plaintiffs) filed this action based upon a claim of racial discrimination in their discharge from employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1866, 42 U.S.C. § 1981 et seq. Following trial, the District Court entered findings of fact and conclusions of law dismissing the suit. We affirm.

Background

Plaintiffs, black males, were employed by Defendant Braniff Airways, Inc. (Braniff) as airplane cleaners. On November 13, 1976, they found a small amount of liquor and some soft drinks in the cabin of an aircraft, and took these items into their possession. As they were leaving the airport area, they were stopped by Braniff representatives and a police officer. Following arrest and prosecution in a city court, plaintiffs were convicted and paid a fine.

On the night of the theft, plaintiffs' employment was terminated. Grievances were filed pursuant to the collective bargaining agreement between plaintiffs' union and Braniff, and a hearing was held before Braniff's vice-president in charge of maintenance at which plaintiffs were represented by the union. Plaintiffs admitted at the hearing that they had taken the liquor and soft drinks from the plane, and their termination was upheld.

Appeal was brought before a neutral arbitrator, in accordance with the collective bargaining agreement, who found that dismissal of the employees was justified on the basis of the evidence and their admissions.¹ 

The District Court found that plaintiffs failed to show that they were discharged because of their race. Evidence at trial revealed that Braniff had reasonable cause to terminate their employment. It was also found that plaintiffs failed to show that white employees accused of theft were treated differently than black employees accused of the same crime. Moreover, the only employee hired to replace the plaintiffs was black, thus refuting the charge that Braniff was discriminating through termination and rehiring. The court concluded that the plaintiffs failed to establish a prima facie case for employment discrimination since Braniff did not fill their positions with nonminorities. Assuming arguendo that plaintiffs established a prima facie case, the court concluded that Braniff met its burden of articulating a legitimate, non-discriminatory reason for the discharges. Plaintiffs, it was held, failed to prove that such reasons were in fact a cover-up for racially discriminatory decisions. Finally, the court concluded that any disparity found in past examples of punishment of black and white employees resulted from the circumstances surrounding the violation and not racial motivations.

The only issue on appeal is whether Braniff punished plaintiffs differently than it would have white employees guilty of the same breach.

Analysis

The Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), set forth the allocation of burdens of proof in a Title VII case alleging discriminatory treatment:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. (citations omitted)

450 U.S. at 251-252, 101 S. Ct. at 1093, 67 L. Ed. 2d at 215, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In this Circuit, to establish a prima facie case where the suit is based on the employees' discharge, the employees are required to show:

(1) They are members of a protected minority;

(2) They were qualified for the jobs from which they were discharged;

(3) They were discharged; and

(4) After they were discharged their employer filled the positions with nonminorities.

Marks v. Prattco, Inc., 607 F.2d 1153, 1155 (5th Cir. 1979). We agree with the District Court that the plaintiffs in the present controversy failed to satisfy the fourth requirement.

The plaintiffs do not argue on appeal that they were replaced by nonminority employees. Rather, their argument seems to be that the punishment for their theft, namely dismissal, was harsher than the punishment they would have received if they were white. Thus, they allege that whether they were replaced by black or white employees, they were wrongfully discharged. Although the District Court did not address this complexity, we recognize the colorable outline of a claim for employment discrimination under § 1981.² 

Even assuming that the plaintiffs can make out a colorable claim for disparate treatment by Braniff in the application of disciplinary rules, we find ample evidence to support the District Court's finding that there was no difference in the severity of punishment of black and white employees. At trial, the plaintiffs gave as examples of disparate treatment the suspension actions taken against several white Braniff employees following theft charges. However, a Braniff witness testified about other white and black employees terminated for stealing Braniff property.³  Thus the evidence adduced at trial shows that the District Court's findings were supported by credible testimony.

AFFIRMED.