The Supreme Court's requirement that "the defendant's explanation of its legitimate reasons . . . be clear and reasonably specific" provides the plaintiff with some protection against the potential for discrimination inherent in a subjective selection process involving subjective job criteria . . . . Obviously, the more subjective the qualification sought and the more subjective the manner in which it is measured, the more difficult will be the defendant's task in meeting the burden imposed by Burdine.Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir. Unit B 1981) (citation omitted) (holding insufficient the reason that the plaintiff did not have a "pleasant personality" when it appeared that the defendant's personnel supervisor equated pleasant personality characteristics with white people);see also Harris v. Birmingham Board of Education, 712 F.2d 1377, 1383-84 (11th Cir. 1983) (holding insufficient the reason that one of the defendant's agents held the erroneous belief that the plaintiff did not want the job). The reason that the defendant offers in this case, although somewhat subjective, is not so incapable of objective evaluation as to render it inadequate to meet the defendant's burden of rebuttal.

" Doc. # 13 at 11-12, 13. To be sure, plaintiffs have "some protection against the potential for discrimination inherent in a subjective evaluation process involving subjective job criteria." Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (5th Cir. Unit B 1981) ( Robbins I) (reversing district court's judgment for employer), vacated and remanded, 456 U.S. 969, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982), post-remand, 682 F.2d 503 (5th Cir. Unit B 1982) (affirming judgment for employer) ( Robbins II). All former Fifth Circuit "Unit B" decisions are binding on this Court.

We hold that it was not clearly erroneous.See also, e.g., cases cited in Pullman-Standard v. Swint, 1982, 456 U.S. 273, 285 n. 15, 102 S.Ct. 1781, 1788 n. 15, 72 L.Ed.2d 66, 78 n. 15; Williams v. New Orleans S.S. Ass'n, 5 Cir. 1982, 673 F.2d 742, 746; Harrell v. Northern Elec. Co., 5 Cir. 1982, 672 F.2d 444, 445-46; De Anda v. St. Joseph Hosp., 5 Cir. 1982, 671 F.2d 850, 855; Pouncey v. Prudential Ins. Co. of America, 5 Cir. 1982, 668 F.2d 795, 798; Wright v. Western Elec. Co., 5 Cir. 1981, 664 F.2d 959, 963; Robbins v. White-Wilson Medical Clinic, Inc., 5 Cir. 1981, 660 F.2d 1064, 1068, vacated, 1982, 456 U.S. 969, 102 S.Ct. 2229, 72 L.Ed.2d 842; Sanchez v. Texas Comm'n on Alcoholism, 5 Cir. 1981, 660 F.2d 658, 661; Markey v. Tenneco Oil Co., 5 Cir. 1981, 635 F.2d 497, 498; Hester v. Southern Ry., 5 Cir. 1974, 497 F.2d 1374, 1381; Bolton v. Murray Envelope Corp., 5 Cir. 1974, 493 F.2d 191, 194; United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 423-24, cert. denied, 1972, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815. The distinction between subsidiary and ultimate facts for purposes of appellate review in this Circuit did not originate in the Title VII context and goes back at least a decade before the enactment of Title VII.

Therefore, the more subjective the criteria in a defendant's proffered reason, the more difficult will be his or her task in meeting the production burden established in Burdine. Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir. Unit B 1981), vacated on other grounds, ___ U.S. ___, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982). With these thoughts in mind, the court now assesses the personnel board's reasons for the differing result between the two white firepersons and the black fireperson.

Otherwise, it would be easy for an employer to conceal discriminatory reasons behind subjective assessments which the plaintiff would have little ability, owing to their subjectivity, to discredit. Cf. Robbins v. White-Wilson Med. Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir. 1981) ("potential for discrimination [is] inherent in a subjective selection process involving subjective job criteria"), vacated on other grounds, 456 U.S. 969 (1982). That is, an employer with no nondiscriminatory reasons could hide behind an unassailable subjective assessment of an individual.

Nevertheless, since the defendant's explanation must be clear and reasonably specific, Burdine, supra, 450 U.S. at 258, 101 S.Ct. at 1096, some proffered a prima facie case. For instance, a defendant relying on a purely heavier burden of production than it otherwise would. Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir. Unit B 1981), vacated on other grounds, 456 U.S. 969, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982). The plaintiff here contends that the company failed to articulate a clear and reasonably specific non-discriminatory ground for discharging her because the explanation offered by Walton was subjective.

This circuit has frequently noted the problems associated with this type of worker assessment and noted that subjective evaluations involving white supervisors provide a ready mechanism for racial discrimination. Parson v. Kaiser Aluminum Chemical Corp., 575 F.2d 1374, 1385 (5th Cir. 1978); Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972); Robbins v. White-Wilson Medical Clinic, 660 F.2d 1064, 1067 (5th Cir. Unit B 1981), vacated on other grounds, 456 U.S. 969, 102 S.Ct. 2229, 72 L.Ed.2d 842 (1982); Harris v. Birmingham Bd. of Educ., 712 F.2d 1377 (11th Cir. 1983). This is because the supervisor is left free to indulge a preference, if he has one, for one race of workers over another.

On issues of credibility, the district court's findings cannot be reversed unless they are clearly erroneous. Robbins v. White-Wilson Medical Clinic, Inc., 5 Cir. 1981, 660 F.2d 1064, 1066. The district court's determination that Ms. Wilkins's testimony that was unfavorable to Sears would not be given credence is not clearly erroneous.

See, e.g., Barnes v. St. Catherine's Hospital, 563 F.2d 324, 326 (7th Cir. 1977); Potter v. Goodwill Industries, 518 F.2d 864, 865 (6th Cir. 1975); Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974); Equal Employment Opportunity Commission v. Murphy Motor Freight Lines, Inc., 488 F. Supp. 381, 387-88 (D.Minn. 1980); Kralowec v. Prince George's County, Md., 503 F. Supp. 985, 1001 (D.Md. 1980). In Robbins v. White-Wilson Medical Clinic Inc., 660 F.2d 1064 (5th Cir. 1981), cited by plaintiff, the court, while not holding the discharged employee's lack of a "pleasant personality" in itself legally insufficient to meet the McDonnell Douglas burden of production, refused to credit such an explanation only after cross-examination demonstrated that the defendant considered a "pleasant personality" to be synonymous with membership in the favored group. Id. at 1067.

This change in the standard of review can be outcome determinative. See Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (5th Cir. 1981), vacated, ___ U.S. ___, 102 S.Ct. 2229, 72 L.Ed.2d 842, on remand, 682 F.2d 503 (5th Cir. 1982) (first opinion reversed district court based on independent determination of fact of discrimination; second opinion affirmed district court using clearly erroneous standard). Scene 3 — Examining the Findings