930 F.

2d 157

55 Fair Empl.Prac.Cas. 871,

56 Empl. Prac. Dec. P 40,681
Henry M. LOPEZ, Plaintiff-Appellant,
v.
METROPOLITAN LIFE INSURANCE COMPANY,
Defendant-Appellee.
No. 1072, Docket 89-7962.

United States Court of Appeals,

Second Circuit.
Argued March 28, 1990.
Decided April 4, 1991.
1

Leon R. Koziol, Utica, N.Y., of counsel, for plaintiff-appellant.

Donald P. McCarthy (Alan J. Pierce, Hancock & Estabrook, Syracuse, N.Y., of

counsel), for defendant-appellee.

Before OAKES, Chief Judge, WINTER, Circuit Judge, and MUKASEY,1

District Judge.
MUKASEY, District Judge:

This appeal arises from the February 6, 1987 discharge from employment of
plaintiff-appellant Henry M. Lopez at the end of his 26-week probationary
period as a sales representative with defendant-appellee Metropolitan Life
Insurance Company ("Met-Life"). Before he started work as a probationary
employee, appellant entered into a Temporary Special Agency Agreement with
Met-Life which required that he place policies generating a cumulative net total
of $4,095 in first-year commissions during this 26-week period in order to
"validate" his employment contract. Met-Life contends, and the district court
found, after a four-day bench trial, that appellant was discharged for failure to
meet this production quota. The appellant, who is black and of Jamaican
descent, does not dispute that he failed to meet the production quota, but rather
contends here as he did below that he could not meet it because Met-Life
discriminated against him on the basis of his race and national origin in

violation of Title VII by failing to train him and by otherwise depriving him of
opportunities afforded white employees to pursue the production quota. The
district court found the evidence insufficient to support this claim. We affirm.
I.
5

In his Complaint, appellant alleged four causes of action arising out of his
discharge: first, that he was discriminated against with respect to on-the-job
training and denied "equal opportunities for customer referrals, assignment, and
promotion" within the Utica branch; second, that Met-Life engaged in
discriminatory office practices "by referring new customers and calls to white
employees while denying the same to plaintiff (and other black employees) ...
and [by directing office personnel] to withhold essential cooperation in the
employment place to plaintiff and others similarly situated ... while
encouraging cooperation with white sales managers and personnel"; third, that
Met-Life engaged in discriminatory promotion practices; and fourth, that he had
been subjected to "unfounded complaints and/or innuendos" relating to his race
and dialect.

At the end of appellant's case-in-chief, the district court dismissed for lack of
standing the third claim that Met-Life discriminated in promotion. After the
trial and post-trial briefing by both parties, Judge McAvoy wrote a
Memorandum-Opinion and Order dated September 20, 1989 dismissing
appellant's claims in their entirety.

Judge McAvoy properly dismissed appellant's disparate impact claim, stating

that appellant's "attempt to present this case as one sounding in disparate impact
betrays a profound misunderstanding of Title VII law." Memorandum-Opinion,
at 13, 1989 WL 110849. To establish a prima facie disparate impact case, a
plaintiff must show that a facially neutral employment practice has a
significantly discriminatory impact. Griggs v. Duke Power Co., 401 U.S. 424,
91 S.Ct. 849, 28 L.Ed.2d 158 (1971). It is not enough to show, at the bottom
line, that there is a racial imbalance in the work force. Ward's Cove Packing
Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). For this
reason, appellant's statistical proof, a box of affirmative action reports which
together allegedly show a void of black employees in the regional offices of
Met-Life in the years 1982 to 1988, is fundamentally inadequate. Appellant did
not show that Met-Life's on-the-job training practices bear any causal
relationship to the dearth of black employees in the regional offices of MetLife. "The causal requirement [of Title VII] recognizes that underrepresentation
of blacks might result from any number of factors, and it places an initial
burden on the plaintiff to show that the specific factor challenged under the

disparate impact model results in the discriminatory impact." Carroll v. Sears,

Roebuck & Co., 708 F.2d 183, 189-90 (5th Cir.1983); Watson v. Ft. Worth
Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 2990, 101 L.Ed.2d 827 (1988).
The evidence at trial showed that there are reasons other than alleged
inadequate training why minorities might not be employed at Met-Life. In fact,
at least three black employees at the Utica office had successfully "validated"
their contracts and worked at the office for at least two years. Two of those
employees were no longer employed at Met-Life because they had voluntarily
resigned.
8

The trial judge dismissed appellant's hostile work environment claims, finding
that appellant had not shown "the requisite pervasiveness of harassment or
hostility" to maintain a hostile working environment claim under Title VII.
Memorandum-Opinion, at 11, 1989 WL 110849. That ruling is not at issue on
appeal.

The only remaining claims are appellant's disparate treatment claims. The trial
court dismissed appellant's pattern or practice disparate treatment claim, finding
that the evidence showed that at least two of three other black employees had
validated their contracts, had been with the Utica office for between two and
three years and had resigned of their own volition, a ruling appellant does not
appear to challenge here. In any event, to make out a pattern or practice case, a
plaintiff must show systematic disparate treatment--that is, that intentional
racial discrimination is the standard operating procedure of the defendant, not
merely that there have been isolated, sporadic acts of disparate treatment.
International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97
S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). The pattern or practice claim would
fail in this case for the same reason that the disparate impact claim failed--the
inadequacy of the statistical evidence, standing alone as it did, in contrast to the
specific evidence offered by defendant of black employees who had validated
their contracts.

10

The focus of appellant's argument remains the trial court's dismissal of his
individualized disparate treatment claims. In essence, appellant contends that
the trial judge misapplied McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Appellant's other arguments are
addressed to the district court's assessment of the evidence.

II.
11

Unless the district court's findings of fact are clearly erroneous, this Court is
bound by them. Berl v. County of Westchester, 849 F.2d 712, 715 (2d

Cir.1988). In deciding whether those findings are clearly erroneous, we must

give considerable deference to the trial court's ability to assess the credibility of
the witnesses. Puritan Ins. Co. v. Eagle Steamship Co., S.A., 779 F.2d 866, 871
(2d Cir.1985). Conclusions of law are freely reviewable. United States v.
Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 297, 5
L.Ed.2d 268 (1961).
12

Appellant contends that the district court effectively repealed Title VII by
misapplying McDonnell Douglas, specifically by finding that appellant failed to
establish a prima facie case of disparate treatment as to his on-the-job training
claim and by failing to find that plaintiff made a sufficient showing on pretext
with regard to his claim that Met-Life engaged in discriminatory office
practices. We disagree.

13

In Title VII actions, the plaintiff bears the burden of initially proving a prima
facie case. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). To establish a prima
facie case of individualized disparate treatment, appellant had to show: (1) that
he is a member of a protected class; (2) that he satisfactorily performed the
duties required in his position; (3) that Met-Life had a policy of providing onthe-job training to its probationary sales representatives; and (4) that appellant
was not provided this training under circumstances giving rise to an inference
of discrimination. See McDonnell Douglas, supra; Rosen v. Thornburgh, 928
F.2d 528, 533 (2d Cir.1991); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert.
denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). Once a plaintiff has
made out a prima facie case of individualized disparate treatment, the defendant
then has a burden to articulate a legitimate, nondiscriminatory business reason
for the actions alleged to be discriminatory. McDonnell Douglas, 411 U.S. at
802, 93 S.Ct. at 1824. When the defendant has met this burden of production
with sufficient specificity, the burden returns to the plaintiff, who ultimately
must establish by a preponderance of the evidence that the nondiscriminatory
reasons proffered by the defendant are a pretext for discrimination. Id. at 804,
93 S.Ct. at 1825; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. To show that the
proffered reasons are a pretext, a plaintiff need not directly prove
discriminatory intent. It is enough for the plaintiff to show that the articulated
reasons were not the true reasons for the defendant's actions. Id. at 256, 101
S.Ct. at 1095. Regardless of how these burdens are described, however, the
plaintiff retains the burden of persuading the fact finder. Id. at 253, 101 S.Ct. at
1093.

14

The district court found that appellant had not met his initial burden in that he
had not shown that other sales representatives received training opportunities

that appellant was denied. Memorandum-Opinion, at 19, 1989 WL 849.

Appellant contends that the trial court required too much--that he should not
have been required to prove that similarly situated white employees were
treated differently--in essence, that the McDonnell Douglas requirements do not
represent the sole means by which a plaintiff can establish a prima facie case of
individualized disparate treatment.
15

It is undoubtedly true that a plaintiff can establish a prima facie case of

individualized disparate treatment through other than a showing under the
formula laid out in McDonnell Douglas. See Grant v. Bethlehem Steel Corp.,
635 F.2d 1007, 1014 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083,
69 L.Ed.2d 954 (1981). Nevertheless, a Title VII plaintiff initially must bear
the burden of "offering evidence adequate to create an inference that an
employment decision was based on a discriminatory criterion illegal under the
Act." International Brotherhood of Teamsters, 431 U.S. at 358, 97 S.Ct. at
1866. Appellant offered no evidence adequate to support such an inference. The
district court found, based on the testimony at trial, including that of a white
probationary sales representative hired after appellant was terminated, that the
training or assistance afforded probationary sales representatives was very
informal: unless the employee asked for help, the employee did not receive it.
Memorandum-Opinion, at 19, 1989 WL 110849. This description of Met-Life's
training policy, which is based on credible evidence, aptly fits the training
afforded appellant according to his own testimony. Absent evidence which
creates an inference of discriminatory treatment, we cannot fault the trial
judge's finding that appellant failed to establish a prima facie case of
individualized disparate treatment. 2

16

Having found that appellant did not meet his initial burden of producing
sufficient evidence to establish a prima facie case, the trial judge was under no
obligation to proceed further in the McDonnell Douglas analysis. Accordingly,
it cannot be error for the trial judge not to have analyzed the issue of pretext as
to the training claim.

17

The only ruling that gives us pause on this appeal is the district court's finding
as to pretext with regard to appellant's claim that Met-Life engaged in
discriminatory office practices by referring new customer calls to white
employees rather than to appellant. Judge McAvoy found that Met-Life
satisfactorily articulated a legitimate business explanation for the fact that in
one instance a call for life insurance information was routed to a white
employee rather than to appellant--that unsolicited requests for life and health
insurance information were routed to sales representatives based on
competency needed to deal with the particular request. He then found that

appellant produced no evidence which tended to establish that Met-Life's

business justification was merely a pretext.
18

Appellant contends that the district court erred in not considering Hamilton's
testimony as evidence of pretext. He points to no particular segment of that
testimony, but after reading Hamilton's testimony in its entirety, as presented in
the Joint Appendix, we must presume that appellant is referring to the
testimony that Hamilton and appellant heard one of the office staff telling a
prospective client seeking information regarding car insurance that no one was
available to answer questions, rather than referring the call to appellant (who
was not licensed to sell car insurance) or Hamilton, who testified that he was.
Instead, a message was taken and subsequently referred to a white sales
representative, Becker, who allegedly had been at Met-Life for a shorter time
than Hamilton. (Tr. at 104-05) Hamilton's testimony showed that he was
qualified to answer questions about car insurance, and that he had been
employed at Met-Life longer than Becker.

19

Even assuming that the trial judge credited this testimony, there is no evidence
on the record to show either that the person who took the call knew that
Hamilton was qualified to deal with car insurance, or that relative competence
is determined by seniority. Notably, neither side summoned the person who
allegedly took that call as a witness. In the absence of such evidence, and given
the deference necessarily afforded a trial judge's findings of fact on appeal, we
cannot find that the trial judge clearly erred in finding that this testimony did
not constitute evidence of pretext.

III.
20

Appellant contends that the district court clearly erred in failing to take into
account the allegedly discriminatory manner of his discharge. Appellant is not
claiming here that he was discharged for discriminatory reasons, 3 but rather that
the manner in which he was discharged is evidence of the discriminatory
treatment afforded blacks in the Utica office of Met-Life. According to
appellant, the office manager, John Cerio, told Hamilton, at Hamilton's desk
and in the presence of other employees, that both appellant and Hamilton were
fired for lack of productivity and, in Hamilton's case, for failure to renew his
master's license. A white employee, Scott Bohling, was not terminated from
employment in the same public and humiliating manner in which appellant and
Hamilton were terminated. (Tr. at 93-96, 100) Cerio denied that Hamilton was
discharged in the presence of other Met-Life employees. (Tr. at 464-65) Neither
party called anyone who witnessed the conversation between Cerio and
Hamilton.

21

Appellant has not shown that the district court's finding is clearly erroneous. To
prove that the manner of his discharge is direct evidence of discrimination,
appellant relies on the testimony of Hamilton that the conversation between
Cerio and Hamilton was heated and occurred in the presence of other
employees. Judge McAvoy made no such findings. This Court cannot find on
appeal that the trial court clearly erred, particularly where these factual
determinations depend solely on the credibility of the witnesses.

22

Neither can we find that the trial judge's ultimate conclusion, that the manner of
appellant's discharge was not evidence of discrimination, was erroneous based
on the factual findings he did make. As the district court noted, whether the
office is well run is not pertinent, in the absence of discriminatory intent, to
deciding whether appellant has been a victim of racial discrimination.

23

We have examined appellant's other arguments, including those relating to the

trial court's evidentiary rulings, and find them to be without merit.

CONCLUSION
24

The judgment of the district court is affirmed.

The Honorable Michael B. Mukasey, United States District Judge for the
Southern District of New York, sitting by designation

As discussed earlier, appellant's proffered statistical proof fails to create an

inference that Met-Life's training policies are discriminatory. The alleged
absence of a pre-licensing training log in his employee file also fails to create
an inference of discrimination. Appellant's supervisor during his pre-licensing
training, Dominick Alexander, testified that he kept such a log on appellant. In
addition, appellant has no complaints about the training he received while
under the tutelage of Alexander

Appellant does not claim to have met his production quota (although he does
claim that had he been properly credited with all of his sales, he would have
come close to meeting it), nor does he point to any evidence which suggests
that any probationary employees who failed to meet their production quota
were not discharged at the end of their probationary term