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... ch requires that despite qualifications the applicant was rejected. In Diaz, Bennett, and Burdine, the applicants were qualified and rejected. In both Bennett and Diaz the court ruled that despite being qualified the plaintiff was not selected. This element was satisfied when Mrs. Pitman's application was rejected in less than a week. The last element that Mrs.
Pitman's case meets requires that the position remained open or was filled by someone else. Someone else in this instance means someone who is a member of another race was given the job. Gunby, Jr. v. Pennsylvania Electric Company, 840 F.2d 1115 (3rd Cir.1988). It is also stated in Diaz that this element "is met whenever the employer continues to consider other applicants whose qualifications are comparable to the plaintiffs after refusing to consider or rejecting the plaintiff." Diaz at 1359.
This is satisfied because Ms. DeLeon although a member of a protected class is not African American. Furthermore, the court has found that even if the person filling the position is from a or the same protected class as the plaintiff it does not stop the plaintiff from establishing a prima facie case. Diaz v. AT&T, 752 F.2d 1356 (9th Cir.1985). The court in Diaz stated that the requirement that the person selected to fill the challenged position not be a member of the plaintiffs protected class "adds a gloss that is absent from McDonnell Douglass." Id at The Court went on to state that replacing the plaintiff with another of the same protected class may sometimes be used as a pretextual device and does not preclude finding an inference of discrimination sufficient to satisfy the fourth element of McDonnell Douglas. Moreover, alternative ways of proving discrimination have been established. One of these alternatives is statistical evidence and this rule arises out of the Diaz case, in which a plaintiff might be able to establish a prima facie case without satisfying the McDonnell Douglass test by presenting statistical evidence of discrimination. The Court held that statistical evidence is unquestionably relevant in a Title VII disparate treatment case. The Court went on to say "statistical information is relevant because it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices.
Such a discriminatory pattern is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue." In addition, in Lowe v. City of Monrovia, 775 F.2d 998, (9th Cir.1985), the court supported the idea of statistical evidence and stated that "when evidence is presented to a fact-finder at trial, the McDonnell-Burdine presumption drops from the case, and the factual inquiry proceeds to a new level of specificity." Id at1006. Another alternative arising out of Lowe is other evidence of discriminatory attitudes. The Court in Lowe stated that all that is needed to establish a prima facie case is evidence that suggests that the employment decision was based on a discriminatory criterion illegal under the Civil Rights Act. Furthermore, this was explained when the court stated "a plaintiff may establish a prima facie case of desparate treatment by satisfying the McDonnell Douglass four-part test, or by presenting actual evidence, direct or circumstantial, of the employer's discriminatory motive." Id at 1009. This discriminatory attitude can be found in the conduct of Dave Brooks, Vice-president of the Marketing Division.
As you stated when you called Mr. Brooks he said "J. Montgomery had made one mistake too many with affirmative action" and he is "fed up." Noted that Mr. Brooks was in charge of hiring for this position and his comments lead me to believe that bias was at work when he reviewed Mrs. Pitman's application. Mr. Brooks also stated that Mrs. Pitman's experience was tailored to catering those who wear denim, baggy jeans and oversized gold jewelry.
This is a derogatory statement. When confronted by Mrs. Pitman, Mr. Brooks said that Ms. DeLeon had a "broader-base" of experience. Ms. Deleon's background contradicts this statement. Her only experience is in buying office furniture and she has no experience in buying apparel or computers, nor does she have experience in the retail private sector.
All this leads to reject Mr. Brook's assessment of Ms. DeLeon's broad base of experience. It is clear that Mrs. Pitman is equally if not more qualified than Ms. DeLeon for the position.
The burden of proving such discrimination is on the plaintiff. The Court in Burdine cited the basic allocation of burdens and the order of presentation of proof in a Title VII case. 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. Id at 253. The most important rule of this case is that the burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.
When the plaintiff has proved a prima facie case of discrimination, the defendant has the burden of clearly explaining the nondiscriminatory reasons for its actions. J. Montgomery's defense claim of a nondiscriminatory reason for not hiring Mrs. Pitman can be challenged. In Bennett v. VAMC 721 F. Supp.
723 (E.D. Penn, 1998), the court stated "when the evaluation is based on subjective impressions and the evaluators are not themselves of the protected class, the legitimacy and nondiscriminatory basis of the articulated reason for the decision may be subject to particularly close scrutiny." Id at 730. Furthermore, in proving that the defendants reason was pretextual (fabricated justification for discriminatory conduct), the court in Gunby, Jr. v. Pennsylvania Electric Company, 840 F.2d 1108, 1116 (3rd Cir.1988), stated that "The plaintiff may meet the burden of proving pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." The court in Bennett ruled in favor of the plaintiff when it was concluded that the explanations given for the selection of the person hired over the plaintiff were not the real or true reasons and the determinative factor was race. Id at 731.
The court has held that the issue as to whether the defendant's explanation for the employment decision is pretextual can be supported by the plaintiff's statistical evidence. Diaz v. AT&T, 752 F.2d 1363 (9th Cir.1985). The court has also ruled that the evidence be substantial. Reeves v. Sanderson Plumbing Products, Inc. 120 S. Ct. 2097 (2000).
This court also held that "evidence from which a rational fact finder could conclude that the employer's proffered explanation for its actions were false is enough to establish a prima facie case." Id at 40. Conclusion: Mrs. Pitman has a case for racial discrimination under Title VII because she can establish a prima facie case in three different ways. First she is able to meet each of the four elements of the test set out in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
This test earlier stated as the McDonnell Douglass test is met when Mrs. Pitman shows that: (1) she belongs to a protected class; (2) she applied and was qualified for the job; (3) despite her being qualified she was rejected; (4) after the rejection the position remained open and employer continued to seek applicants. In addition, Mrs. Pitman is able to provide statistical evidence of discrimination on the background make-up and hiring practices of J. Montgomery. Furthermore, she has evidence of discriminatory attitudes. This attitude is expressed by Mr. Brooks, the man in charge of hiring for the position.In addition, I would also like to ask Mr.
Lythcott what he meant by saying that she was "more than qualified to be a top manager at J. Montgomery, except for one thing." We should investigate what that one thing was. We should also find out why the EEOC denied Mrs. Pitman's claim and find further information on the recent suit brought against J. Montgomery..
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