*District Judge of the Eastern District of Texas, sitting by

designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-2436.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,

Cross-Appellee,

v.

BAILEY FORD, INC., Defendant-Appellee, Cross-Appellant.

July 21, 1994.

Appeals from the United States District Court for the Southern

District of Texas.

Before REAVLEY and JONES, Circuit Judges, and JUSTICE*, District

Judge.

PER CURIAM:

There was evidence in the record to support the district

court's finding that Bailey Ford did not discriminate against Ms.

Qualls on the basis of her sex in refusing to hire her as a truck

salesperson. EEOC has not persuaded us that the court's assessment

of the evidence and credibility of the witnesses was clearly

erroneous. Consequently, we cannot reverse his findings.

 Further, Fed.R.Civ.P. 68 was not properly invoked by Bailey

Ford as a device to charge costs against EEOC in this case. See

Delta Airlines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67

L.Ed.2d 287 (1991). EEOC did not "obtain" a judgment in the sense

used by the Supreme Court in August. Moreover, even if appellee

were entitled to recover "costs" under Rule 68, its attorneys' fees

are not among the properly recoverable costs without a
 

1Because Bailey Ford did not raise the issue, we do not here

decide whether EEOC had the authority to continue pursuing the

discrimination case after the death of the charging party. 

2

determination that the action was frivolous, unreasonable, or

without foundation. See O'Brien v. City of Greers Ferry, 873 F.2d

1115, 1120 (8th Cir.1989); Crossman v. Marcoccio, 806 F.2d 329

(1st Cir.1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95

L.Ed.2d 527 (1987).1

The judgment of the district court is AFFIRMED.

JUSTICE, District Judge, concurring in part and dissenting in

part:

I concur in that part of the majority's opinion which holds

Rule 68 unavailable to Bailey Ford, but I dissent from the

majority's affirmance of the district court judgment denying relief

to EEOC and Ms. Qualls.

Plaintiff-appellant, Equal Opportunity Employment Commission

(EEOC), filed this civil action on behalf of Frances Qualls,

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, alleging that Bailey Ford, defendant-appellee, failed to

hire her as a sales person because of her sex. After a two day

bench trial, the court found that Bailey Ford's failure to hire

Qualls was not based on sex. The trial court entered judgment for

the defendant, and ordered each party to bear its own costs. The

trial court later denied Bailey Ford's request for attorney's fees.

In order to prevail in a Title VII suit, a plaintiff must

first make out a prima facie case of discrimination. If the

plaintiff presents a prima facie case of discrimination, the burden
3

shifts to the defendant to articulate a legitimate,

non-discriminatory reason for its decision. If the defendant

articulates such a reason, the burden shifts back to the plaintiff

to show that he articulated reason is a mere pretext. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). Recently, the Supreme Court held that the plaintiff must

also prove that the defendant intended to discriminate, even after

proving that the articulated reason is pretextual. St. Mary's

Honor Center v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d

407 (1993).

The trial court found that the defendant did not intend to

discriminate against Ms. Qualls, and entered a judgment for the

defendant based on its findings of fact and conclusions of law.

The question of whether discriminatory intent exists is one of fact

that is reviewed by an appellate court under the clearly erroneous

standard. Anderson v. City of Bessemer City, 470 U.S. 564, 572-75,

105 S.Ct. 1504, 1510-12, 84 L.Ed.2d 518 (1985). Without sufficient

findings of fact, an appellate court cannot engage in meaningful

review.

Rule 52(a) of the Federal Rules of Civil Procedure provides

that the trial court "shall find the facts specially." The purpose

of the rule is to (1) engender care on the part of the trial judge

in making factual determinations, (2) make clear what was decided

for purposes of res judicata and collateral estoppel, and (3) make

possible appellate review. Ratliff v. Governor's Highway Safety

Program, 791 F.2d 394, 400 (5th Cir.1986).
4

In the present appeal, the trial court's findings of fact are

conclusory, mostly relating to undisputed facts and jurisdictional

matters. The following findings were made as to the question of

intentional discrimination on the basis of gender:

16. Bailey Ford's decision not to hire Ms. Qualls was not

because of her sex.

18. Plaintiff has failed to prove by a preponderance of the

evidence that Ms. Qualls' sex played any part in Bailey Ford's

decision to pass her over as a sales trainee.

20. Bailey Ford would not have employed Ms. Qualls as an

automobile and truck sales person even absent any

discriminatory motive.

The trial court also came to two legal conclusions:

19. Frances Qualls is not entitled to an award of back pay,

the Commission is not entitled to any relief in this cause.

22. Neither the EEOC nor Frances Qualls are entitled to any

relief in this cause.

While it is true that the trial court made a finding on the

ultimate issue in an employment discrimination case—whether the

defendant acted with discriminatory intent, St. Mary's, --- U.S. --

--, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)—a trial court normally

examines the defendant's assertedly legitimate non-discriminatory

reason, and then determines whether plaintiff has proved that such

reason is not worthy of credence. When a court reaches the

ultimate issue in a discrimination case without explaining how or

why it reached its conclusions, such findings cannot be reviewed.

See Lopez v. Current Director of Texas Economic Development

Commission, 807 F.2d 430, 434 (5th Cir.1987) ("This lack of

explanation is fatal under Fed.R.Civ.P. 52(a)."). The Fifth

Circuit has repeatedly refused to review findings of fact such as
5

those in the court below, explaining that:

In an employment discrimination case, a plaintiff may prevail

either by persuading the court that a discriminatory reason

more likely motivated the employer or by showing that the

employer's proffered explanation is not worthy of credence.

The ultimate issue, however, and the one to be decided by the

court, is whether the employer intentionally discriminated

against the plaintiff. If the trial court believes the

employer's explanation of its motivation, the court may not

merely state, in conclusory terms, that the plaintiff has

failed to prove the employer's suggested reason to be a

pretext for invidious discrimination or that there is not

evidence of discriminatory treatment. It must at least infer

to the evidence tending to prove and disprove the merits of

the proffered explanation and state why the court reached the

conclusion that the explanation has not been credited.

Ratliff, 791 F.2d at 400-01 (5th Cir.1986). The court has also

stated:

In reviewing the district court's finding of no discrimination

under the clearly erroneous standard, this Court cannot be

left to second guess the factual basis for the district

court's conclusion. This Court cannot determine whether the

district court's finding that plaintiff failed to demonstrate

pretext was clearly erroneous when the district court's

finding is not expressed with sufficient particularity. It is

not the function of this Court to make credibility choices and

findings of fact.

Redditt v. Mississippi Extended Care Centers, 718 F.2d 1381, 1386

(5th Cir.1983); see also, Wilson v. Zapata Off-Shore Company, 939

F.2d 260 (5th Cir.1991); Smith v. Texas Department of Water

Resources, 799 F.2d 1026 (5th Cir.1986); Chaiffetz v. Robertson

Research Holding, Ltd., 798 F.2d 731 (5th Cir.1986).

The court below found Bailey Ford's decision not to hire Ms.

Qualls was not because of her sex, and that plaintiff had failed to

prove by a preponderance of the evidence that her sex played any

part in Bailey Ford's decision to pass her over as a sales trainee.

However, the bases for the trial court's decision are unclear,
6

because its factual and legal findings are too vague to be

reviewed. I would, therefore, remand the case to the trial court,

for more complete and particular findings of fact and conclusions

of law.

On remand, the trial court should be directed to make clear

the evidentiary bases for its factual findings, pointing out which

evidence it adopted and which evidence it rejected in making such

findings. Specifically, it should be plain whether the trial court

accepted defendant's asserted non-discriminatory reason, and, if

so, which one. Further, the trial court should be required to

explain whether plaintiff failed to prove discriminatory intent.

Rule 52(a) "exacts neither punctilious detail nor slavish tracing

of the claims issue by issue and witness by witness," but it does

require findings detailed enough to allow the appellate court to

engage in meaningful review. Lopez, 807 F.2d at 434 (citing

Ratliff, 791 F.2d at 400).

On this aspect of the case, I dissent.