774 F.

2d 636
38 Fair Empl.Prac.Cas. 1831,
38 Empl. Prac. Dec. P 35,584, 54 USLW 2242

Raymond F. HOLMES, Appellant,

v.
Joseph J. BEVILACQUA, Individually and in his official
capacity as Commissioner, Department of Mental Health and
Mental Retardation of the Commonwealth of Virginia and the
Department of Mental Health and Mental Retardation,
Appellees.
No. 84-1916.

United States Court of Appeals,

Fourth Circuit.
Argued May 8, 1985.
Decided Oct. 10, 1985.

Robert P. Geary, Richmond, Va. (Geary & Davenport, Richmond, Va., on

brief), for appellant.
Henry M. Massie, Jr., Richmond, Va. (Sands, Anderson, Marks & Miller,
Mary Yancey Spencer, Asst. Atty. Gen., Richmond, Va., on brief), for
appellees.
Before WINTER, Chief Judge, CHAPMAN, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
HARRISON L. WINTER, Chief Judge:

Plaintiff, who is black, sued defendant, his employer, alleging racial

discrimination under 42 U.S.C. Sec. 1983 and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Sec. 2000e et seq. Plaintiff alleges discrimination in
defendant's failure to promote him to the position of Deputy Commissioner of
the Virginia Department of Mental Health and Mental Retardation. The district
court granted defendant's motion to dismiss under Fed.R.Civ.P. 41(b) at the
close of plaintiff's case.1 Plaintiff appeals, contending that the district court

erred in finding that he failed to prove a prima facie case of discrimination.

2

We reverse and remand for further proceedings.

I.
3

Plaintiff Holmes is a forty-year-old black male. He received a Bachelor's

Degree in 1969, a Master's Degree in 1970, and a Doctor of Philosophy Degree
in 1977. In 1981 he became Assistant Commissioner for the Virginia
Department of Mental Health and Mental Retardation (the department) by
appointment of defendant Bevilacqua's predecessor in office.

Defendant Bevilacqua became head of the department in September 1981.2 At

that time the department was managed by seven Assistant Commissioners, a
Deputy Commissioner and the Commissioner. In January, 1983, defendant
appointed Howard Cullum, a white male, as temporary, part-time acting Deputy
Commissioner to fill a vacancy in that office pending recruitment of a
permanent replacement.

Plaintiff applied for the permanent position. He was a finalist, and he was
interviewed by defendant and James Bozarth, Personnel Director of the
Department. The interview was brief, and plaintiff was asked only four
questions. In June, 1983, defendant gave Cullum the permanent appointment.
Defendant advised plaintiff by letter that he preferred Cullum over plaintiff
because "we need in the Central Office, the skill and experience that comes
from municipal government and local community experience." In a subsequent
meeting between plaintiff and defendant, plaintiff expressed concern that the
questions asked him at his interview did not touch upon his municipal
government experience or his community experience. Defendant, according to
plaintiff, said that he had made a "subjective" decision in making the
appointment.

Plaintiff's evidence showed that immediately prior to his appointment to the

temporary position, Cullum was Executive Director of the Virginia Beach
Community Services Board. Cullum did not have a doctoral degree, had never
served as director of a mental retardation facility, and had never published
anything in a scholarly journal. Plaintiff, before becoming Assistant
Commissioner of the Department, was Southern Regional Director for Mental
Retardation Services of Nevada, serving a region with 600,000 people. He had
experience directing a mental health institution and teaching and training
teachers of handicapped children. He had published two papers in scholarly

journals.
7

Applications for the position of Deputy Commissioner were received and

screened by the Employment Supervisor of the Department on the basis of the
criteria set forth in the promotion announcement. She rated plaintiff as the third
highest ranking applicant, tied with another. She rated Cullum, who was given
the appointment, as the fifth ranking applicant. Plaintiff had been rated by
defendant with a numerical score of 3.9 out of a possible 4.0 earlier in his
tenure at the department. Defendant told plaintiff that he had the "best-run
division within the department."

II.
8

As we have recently pointed out in Moore v. City of Charlotte, 754 F.2d 1100,
1105 (4 Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985),
a plaintiff alleging racial discrimination in employment as a result of disparate
treatment may prove his Title VII claim in several ways. First, he may
introduce direct evidence of a defendant's discriminatory intent; there is no such
evidence here.3 Second, he may show discrimination using circumstantial
evidence. This showing is part of a three-stage process:

9
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 the
preponderance of the evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination.
10

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct.
1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted).

11

The "burden of establishing a prima facie case is not a heavy one." Young v.
Lehman, 748 F.2d 194, 197 (4 Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct.
2126, 85 L.Ed.2d 489 (1985); see also Moore, 754 F.2d at 1105. The plaintiff
need only show by a preponderance of the evidence that a qualified applicant
was not promoted "under conditions which, more likely than not, were based
upon impermissible racial considerations." Gairola v. Commonwealth of
Virginia Dept. of General Services, 753 F.2d 1281, 1286 (4 Cir.1985) (quoting
Young at 196). See also Burdine, 450 U.S. at 253, 101 S.Ct. at 1093 (requiring
"inference" of unlawful discrimination). This prima facie case creates a
presumption of discrimination, "and if the employer is silent in the face of the

presumption, the court must enter judgment for the plaintiff because no issue of
fact remains in the case." Burdine at 254, 101 S.Ct. at 1094.
12

Various circumstances may give rise to the inference of discrimination. In

Young, for example, we agreed with the district court that irregular hiring
procedures sufficed to establish a prima facie case. Young, 748 F.2d at 197.4
More frequently, plaintiffs establish a prima facie case using the Supreme
Court's formula in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). This formula requires a plaintiff to show: (1) that he is
a member of a protected class; (2) that he applied and was qualified for the job;
(3) that though qualified he was rejected; and (4) that, "after his rejection, the
position remained open and the employer continued to seek applicants from
persons of complainant's qualifications." Id. at 802, 93 S.Ct. at 1824.

13

Unquestionably, plaintiff has shown that he meets three prongs of the fourprong McDonnell Douglas test for establishing a prima facie case. He is black;
he was qualified for the job; and he was rejected. The only question is whether
"after his rejection, the position remained open and the employer continued to
seek applicants from persons of complainant's qualifications." McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Defendant argues that since Cullum
was appointed to the position, the position did not remain open, and hence the
minimum requirements of McDonnell Douglas were not met.

14

The courts which have considered cases of alleged discrimination in promotion

under the McDonnell Douglas formulation have treated the requirement that the
"position remained open" after plaintiff's rejection as satisfied by proof that the
position was not abolished and have not required proof that the position
remained unfilled.5 Such an approach is entirely in accord with the rationale of
the McDonnell Douglas formulation as explained in International Brotherhood
of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n.
44, 52 L.Ed.2d 396, where it was said

15 McDonnell Douglas case involved an individual complainant seeking to prove

The
one instance of unlawful discrimination. An employer's isolated decision to reject an
applicant who belongs to a racial minority does not show that the rejection was
racially based. Although the McDonnell Douglas formula does not require direct
proof of discrimination, it does demand that the alleged discriminatee demonstrate at
least that his rejection did not result from the two most common legitimate reasons
on which an employer might rely to reject a job applicant: an absolute or relative
lack of qualifications or the absence of a vacancy in the job sought. Elimination of
these reasons for the refusal to hire is sufficient, absent other explanation, to create
an inference that the decision was a discriminatory one.

16

If a purpose of the formulation is to negate the possible legitimate reason that a

vacancy did not exist, that purpose is served where there is proof that the
position continued even though the position was filled.

17

This is the implicit view that we took in Page v. Bolger, 645 F.2d 227 (4 Cir.)
cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981), a case of
alleged discrimination in the failure to promote the plaintiff to either of two
separate positions. In both instances, there was an immediate promotion of
another candidate, and yet in commenting on whether plaintiff had proved a
prima facie case under McDonnell Douglas, we said that defendant had
properly conceded that a prima facie case had been proved because, inter alia,
the evidence showed that after plaintiff was denied promotion, "the positions
thereafter remained open and were in fact filled by the employer from other
applicants possessing his general qualifications." Id. at 229-30.

18

It is the explicit view taken by the Eighth Circuit in Bell v. Bolger, 708 F.2d
1312, 1315 (8 Cir.1983). There the court held that plaintiff had proved a prima
facie case of age and race discrimination under the McDonnell Douglas
formulation, saying:

19

As the Supreme Court stated in Burdine, supra, "[t]he burden of establishing a

prima facie case of disparate treatment is not onerous." 450 U.S. at 253, 101
S.Ct. at 1093. Bell presented evidence that he was a member of two protected
classes: he is black and was between the ages of forty and seventy at the time
he applied for a promotion. Bell was qualified for the position of Labor
Relations Assistant; he was one of the seven "best qualified" applicants who
were interviewed for the position. Bell was rejected by the review committee,
however, and the Postal Service promoted a young white male to fill the
position. These facts are sufficient to establish a prima facie case.

III.
20

We conclude that plaintiff proved a prima facie case of race discrimination in

the failure to promote him to Deputy Commissioner. The district court erred in
granting defendant's motion to dismiss at the close of plaintiff's case.

21

REVERSED AND REMANDED.

CHAPMAN, Circuit Judge, dissenting:

22

I respectfully dissent.

23

In a disparate treatment case, a prima facie case may be established by direct

evidence of discrimination or by indirect evidence whose cumulative probative
force, apart from the presumptuous operation, would suffice under the
controlling standard to support as a reasonable probability the inference that but
for the claimant's race he would have been promoted. Lovelace v. SherwinWilliams Co., 681 F.2d 230, 242 (4th Cir.1982). Absent such evidence,
however, the claimant must resort to the McDonnell Douglas presumption with
all its ensuing complexities.

24

Here, plaintiff presented no such independent evidence and necessarily must

resort to the McDonnell Douglas formulation to establish his prima facie case
of employment discrimination. Under this formulation, an alleged discriminatee
must show (i) that he belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek applicants from
persons of plaintiff's qualifications. McDonnell Douglas v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In establishing this model,
however, the Supreme Court noted that "the facts necessarily will vary in Title
VII cases, and the specification above of the prima facie proof required from
the [plaintiff] is not necessarily applicable in every respect in differing factual
situations." Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13.

25

The underlying factual situation in McDonnell Douglas is quite different from

the present factual situation. In McDonnell Douglas, proof of a prima facie case
was not seriously contested. Plaintiff applied for a mechanics position for
which he was qualified and was rejected. After his rejection, the position
remained open--thus, the fourth McDonnell Douglas requirement in the prima
facie proof scheme.

26

As noted by the majority and explained by the Supreme Court in International

Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct.
1843, 1866 n. 44, 52 L.Ed.2d 396 (1977), while the McDonnell Douglas four
prong scheme does not require direct proof of discrimination, it does require
that the alleged discriminatee at least show that his rejection "did not result
from the two most common legitimate reasons on which an employer might
rely to reject a job application: an absolute or relative lack of qualifications or
the absence of a vacancy in the job sought." Therefore, in a factual situation
where persons apply sporadically for a vacant position and are rejected before
all applicants are interviewed, it becomes important in establishing a prima
facie case of discrimination that the plaintiff applied and was qualified but was
rejected only to have the job remain open and later be filled by a person of

equal qualification. Leaving the job open is the element that justifies the
presumption of racial discrimination and makes a prima facie case. By not
hiring a qualified black and continuing to search for a qualified person, other
than a black, the employer has acted in such a way as to justify the presumption
of discrimination and to require the employer to explain its action.
27

Plaintiff, seeking a promotion, was one of five persons who applied for the
position of full-time deputy commissioner, the second highest level position in
the Virginia Department of Mental Health and Mental Retardation. These five
were all found qualified and Holmes was tied for the third most qualified
finalist.1 All five were interviewed and Cullum, who ranked lower than the
plaintiff in the preliminary screening, was chosen. The defendant justified his
choice on the grounds of municipal government and local community
experiences. The defendant's acceptance of Cullum and rejection of the plaintiff
and the other three applicants was simultaneous, and the job did not remain
open. Thus, contrary to the fact pattern in McDonnell Douglas, an employer in
this situation would not give as a legitimate reason for rejection that there was
no vacancy. Instead, the promotion method was one where a vacancy remained
open only until one of the five qualified and interviewed finalists was chosen.

28

The question, therefore, becomes whether the McDonnell Douglas four prong
proof scheme is applicable in factual situations like this and, if so, how might it
be modified to insure proof of a prima facie case.

29

In a case of alleged discrimination in promotion, where there is no position

which remains open after an applicant is rejected, this court has applied the
McDonnell Douglas scheme but in a modified fashion. For example, in Wright
v. National Archives & Records Service, 609 F.2d 702 (4th Cir.1979), where
the alleged discriminatee, after training for a promotion, was denied the
promotion, this court modified the fourth prong of the scheme to read "that,
after his rejection, the position remained available by promotion to others of his
qualification." In Wright, however, the promotion of concern was initially to a
higher government rating (GS-9) so as to qualify the trainee for some special
project. By not passing the training and thus not qualifying for the higher rating
and promotion, the vacancy for the special project for which he was to be
assigned, of course, remained open for a qualified individual--thus, the fourth
prong.

30

In Page v. Bolger, 645 F.2d 227 (4th Cir.1981), a black postal employee,
applying for a supervisory position, went through a similar screening and
interview process as the plaintiff, and too, was rejected. This court, without
explanation, held that the evidence showed that Page made out a prima facie

case under the four prong McDonnell Douglas proof scheme, without
modification.
31

The majority here, as well, applied the four prong scheme, holding
unquestionably that plaintiff met the first three prongs and justifying the fourth
prong on the grounds that the language "position remained open" meant that
the position was simply "not abolished." In essence, the majority held that it is
enough for a plaintiff in this fact situation to prove a prima facie case by
showing only that he is black, that he applied and was qualified for the
promotion he sought, and that he was rejected.

32

Although I agree that the McDonnell Douglas four prong proof scheme for a
prima facie case is a sensible, orderly way to evaluate the evidence in disparate
treatment cases like this one, I do not believe that proving the first three prongs
alone is sufficient to establish a prima facie case under this fact pattern. Being a
rejected qualified minority applicant does not create a presumption that the
employer discriminated against him without something more.

33

When applicants are initially screened before an interview, all interviewees are
of course qualified for the position. Thus, in this situation, being qualified
creates no inference of discrimination. Furthermore, adding the fact that the
applicant was not chosen similarly creates no inference of discrimination. The
sole characteristic the applicant possesses that in any way hints at
discrimination is that he belongs to a minority.

34

As discussed above, in McDonnell Douglas it was important that even though

the applicant was qualified and available, the employer continued to look for a
person of equal qualification to fill the job after he had rejected the applicant.
The fact that "the job remained opened" adds credence to the applicant's claim
that he was discriminated against because of his race and for reasons other than
his lack of qualifications or lack of vacancy. Without such a fact pattern, there
is nothing to suggest possible discrimination except that a qualified minority
applicant was rejected.

35

In United States Postal Service Board of Governors, Petitioner v. Louis H.

Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), the Supreme
Court stressed that the McDonnell Douglas proof scheme does not require
direct proof of discrimination to prove a prima facie case of discrimination.
However, the Supreme Court's opinion in Aikens did not preclude us from
requiring at least some indirect evidence of discrimination, even though that
evidence might not meet the standard as defined in Lovelace for proving a

prima facie case without the McDonnell Douglas presumption. Under the facts
of this case, therefore, for the plaintiff to establish a prima facie case, he should
introduce into evidence at the very least a scintilla of indirect evidence of
discrimination which would act to add credence to his claim that he was
discriminated against because of race or for reasons other than a lack of
qualifications or vacancy. Otherwise, in every case where a prescreened and,
hence, qualified minority applicant interviews for a position and is rejected,
employers will be forced unduly to defend their choice in a court.
36

Here, the district court stated that it found no evidence of discrimination. This
finding is not clearly erroneous and is protected by Federal Rule of Civil
Procedure 52(a).

37

Even if the plaintiff has made out a prima facie case, however, defendant
moved to dismiss the case under Rule 41(b) of the Federal Rule of Civil
Procedure which requires that the judge, as the trier of fact, weigh and consider
all of the evidence and he may sustain the motion even though the plaintiff may
have presented a prima facie case. See 5 Moore's Federal Practice Sec. 41.13(4)
(2d ed. 1984). This is exactly what the trial judge did.

38

In Aikens, the Postal Service argued that an employee who showed only that he
was black, had applied for a job for which he was qualified, and was rejected
had not established a "prima facie" case of employment discrimination under
Title VII. However, the Supreme Court held that the establishment of the prima
facie case no longer was in issue because the defendant "had done everything
that would be required of him if the plaintiff had properly made out a prima
facie case." 460 U.S. at 715, 103 S.Ct. at 1482. The district court in Aikens had
before it not only plaintiff's proof of a prima facie case but defendant's
legitimate, nondiscriminatory reasons for not selecting the plaintiff. When a
defendant responds to the plaintiff's proof by offering evidence of the reason
for the plaintiff's rejection, the fact finder must then decide whether the
rejection was discriminatory within the meaning of Title VII. Id. At this stage,
the McDonnell Burdine presumption "drops from the case", Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67
L.Ed.2d 207 (1981), and "the factual inquiry proceeds to a new level of
specificity." Id. at 255, 101 S.Ct. at 1095. The new factual inquiry becomes
"whether the defendant intentionally discriminated against the plaintiff." Id. at
253, 101 S.Ct. at 1093.

39

Here, the district court had before it the plaintiff's case-in-chief, the pretrial
order, and all of the exhibits. Defendant's exhibits 8a (interview evaluation
worksheets) and 10a (letter of rejection to Holmes) revealed the defendant's

reasons for not selecting the plaintiff. Although part of the reason is claimed to
be subjective,2 this court, in Page v. Bolger, supra, held that "the mere fact that
subjective criteria are involved in the reason articulated by an employer does
not prevent according it sufficient rebuttal weight to dispel the inference of
discrimination raised by the prima facie case." Page v. Bolger, 645 F.2d at 230.
Local community and municipal government experience is not subjective and is
the reason given in the letter. Holmes testified that Bevilacqua advised Holmes
that subjective elements may have entered into the selection process.
40

From the following excerpt of the district court's holding, it is apparent that it
considered the defendant's reasons for rejection and was not persuaded that the
defendant made an error in rejecting the plaintiff.

I41have, of course, examined the exhibits in the case. I have been familiar with the
case since it was filed and have followed the case along and have had a final pretrial conference, and have gone over with the lawyers the pertinent facts in the case.
And I am not in a position to say that there is evidence from which I can conclude
that a mistake was made.
42

Thus, the issue at that point should have shifted away from whether a prima
facie case had been established and to the question of whether the defendant
intentionally discriminated against the plaintiff. Although the district court did
not cite Aikens for this proposition and thereby make it known that it made this
shift, I believe that it amply responded to this issue and found no evidence of
intentional discrimination. Therefore, I find that the district court properly
granted defendant's motion to dismiss under Rule 41(b).

Rule 41(b) provides in part:

After the plaintiff, in an action tried by the court without a jury, has completed
the presentation of his evidence, the defendant, without waiving his right to
offer evidence in the event the motion is not granted, may move for a dismissal
on the ground that upon the facts and the law the plaintiff has shown no right to
relief. The court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence.

The department itself was also named as a defendant

There is, however, evidence from which it may be inferred that defendant's
justification of his promotion decision was pretextual. Defendant justified his

choice of another candidate because of the need for the skill and expertise that
comes from municipal government and local community experience. Plaintiff
testified that when he was interviewed, the questions asked him did not touch
on his municipal government or community experience
4

The hearing there first proceeded without a hearing panel, contrary to Navy
regulations. Further, one of the panel members wrote "My guess she's black" on
a rating sheet for one of the applicants

We think that a contrary interpretation is, in effect, a determination that the

McDonnell Douglas presumption has no application in any case of alleged
discrimination in promotion where the position is filled. The usefulness of the
presumption is limited to cases where a person claiming to have been the
subject of discrimination is unable to adduce direct evidence of discriminatory
intent. If evidence of discriminatory intent (other than the presumption) is
required to establish a prima facie case, there is no need to invoke the
presumption

The ranking was done by Donna Shumate, an employment supervisor in the

department, who was not involved in the hiring decision and made her rankings
from materials submitted to her by the applicants

Letter of Bevilacqua to Holmes of June 7, 1983:

Thank you very much for applying for the position of Deputy Commissioner
for the Department of Mental Health and Mental Retardation. Your
understanding of my style and operation requirements is obviously well
understood. I appreciate your straight forward responses to my questions
because they reflect your clear understanding of the mission of the Department.
It is my judgement that we need in the Central Office, the skill and experience
that comes from municipal government and local community experience. For
this reason, I am selecting Howard Cullum for the position of Deputy
Commissioner. It was a difficult choice and I appreciate the support you have
provided to the Department.