Munoz v. Orr

• Decision Date: 05 January 2000
• Docket Number: No. 97-50736,97-50736
• Parties: (5th Cir. 2000) JESUS G. MUNOZ; MANUEL MUNOZ, JR., Plaintiffs-Appellants, v. VERNE ORR; ET AL., Defendants, F. WHITTEN PETERS, SECRETARY OF U.S. DEPARTMENT OF THE AIR FORCE, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 291

200 F.3d 291 (5th Cir. 2000)

JESUS G. MUNOZ; MANUEL MUNOZ, JR., Plaintiffs-Appellants, v. VERNE ORR; ET AL., Defendants, F. WHITTEN PETERS, SECRETARY OF U.S. DEPARTMENT OF THE AIR FORCE, Defendant-Appellee.

No. 97-50736

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 5, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeals from the United States District Court for the Western District of Texas

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal represents the final phase of what has been protracted and difficult litigation for both sides. Plaintiffs allege that the civilian employee promotion system used at Kelly Air Force Base has operated to discriminate against Hispanic males. After a prolonged discovery and motions period, the district court granted the defendant's motion for summary judgment and plaintiffs appealed. Upon initial submission, we ordered a limited remand so that the district court could explain its reasoning with respect to its summary judgment. The district court prepared an order explaining its decision and the parties filed supplemental briefs. We must now decide the issue of whether the district court erred in granting summary judgment for the defendant, given the limited evidence before it.

I. Factual and Procedural History

Plaintiffs Jesus G. Munoz and Manuel Munoz, Jr. are Hispanic males, brothers, employed as part of the civilian workforce at Kelly Air Force Base near San Antonio, Texas [Kelly]. They brought this suit on behalf of themselves and all Hispanic male civilian employees at Kelly under Federal Rule of Civil Procedure 23(b)(2). Plaintiffs allege that the promotion system used by the Air Force for civilian employees has a disparate impact on Hispanic males, i.e. that the system results in fewer Hispanic males receiving promotions than would be expected based on the proportion of the civilian workforce at Kelly that they comprise.

An explanation of plaintiffs' claims first requires an understanding of the general context in which hiring and promotion takes place at Kelly. Civilian employment at Kelly is organized on the "GS" (General Service) scale, a salary and promotions grid in common use throughout civilian federal employment. Each GS level, or grade, represents a salary range. The GS level to which an employee is assigned depends upon such factors as education level, skill level, time in service, and degree of authority of the position he occupies. Over the course of a career in federal civilian employment, an employee may occupy several different GS levels or steps within a GS level. Certain GS levels are not open to employees without particular qualifications (e.g. a college degree or its equivalent). As a general matter, each job opening is allocated to a particular GS level or range of levels, thus setting the maximum salary that position could accrue. A federal civilian job also has skills requirements and responsibilities attached to it that in part define its GS range.

At Kelly, civilian promotions are handled in part by a Merit Promotion Plan that includes an automated system called the "Personnel Placement and Referral System," or PPRS. Under PPRS, employees need not submit applications for promotions. Rather, as a position becomes available, PPRS considers all eligible employees within the defined area of consideration for the position (e.g. Kelly Air Force Base or the entire Air Force). PPRS recursively eliminates employees under increasingly specific job requirements until the desired number of candidates is reached. PPRS thus works like a funnel, at first considering all nominally eligible employees for a promotion and then narrowing the field based on successively more detailed requirements until a short, ranked list is generated. Each stage of this narrowing is known as a "progression level factor," or PLF. Ties between employees are broken by reference to appraisal scores, awards, and service computation date, in order. The list is hand-checked and then forwarded to the selecting official, who chooses one of the employees for the promotion.

The automated program is not without subjective elements. At the beginning of the promotion process, three-person teams establish and rank the job skills relevant to the position. This ranked list is called a "Promotion Evaluation Pattern," or PEP. The PLFs used by the automated program to narrow the field for a given promotion are derived from these PEPs. Furthermore, within the automated PPRS program, ties between eligible employees are broken in part by appraisal scores and awards and service computation dates. An employee's appraisal scores and receipt of any awards depend, to a large degree, on the discretion of his supervisors. Lastly, after a finite list of names for a promotion has been prepared by the PPRS, a selecting officer chooses one employee from the group. Though the officer's range of choice is limited to the list derived from the PPRS, the actual selection from within the group is left to the selecting officer's discretion. Thus, promotions at Kelly comprise both subjective and objective components that are significantly intertwined.

Plaintiffs filed this action in 1985, alleging sex and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000 et seq. Plaintiffs filed this case as a class action under Federal Rule of Civil Procedure 23(b)(2) on behalf of themselves and all other Hispanic male civilian employees, contending that the promotion system at Kelly had an adverse disparate impact on Hispanic males.¹ In February of 1989, the district court granted summary judgment for defendant, finding that plaintiffs had failed to exhaust their administrative remedies. This Court reversed that initial summary judgment and remanded for further proceedings. Munoz v. Aldridge, 894 F.2d 1489 (5th Cir. 1990).

On remand, the case was referred to a magistrate judge who held a class certification hearing and then recommended that the case be certified as a class action. The class was defined as "all Hispanic male employees, GS-09 to GS-14 at the SA-ALC, who on or after 2/26/80 were eligible for promotion to positions at grade GS-11 and above at SA-ALC which are covered by Merit Promotion Certificates produced by the Central Civilian Personnel Office at SA-ALC, up to and including the date of 09/26/91."² The class was certified in accordance with the magistrate's report.

During discovery, plaintiffs sought certain information regarding the Air Force's promotion procedures, including access to the algorithm used in the automated PPRS process. After an in camera review of the algorithm, the district court denied plaintiffs' request. No objections were filed to that denial. Experts for both sides filed reports. Discovery was re-opened in order to allow plaintiffs' expert, Dr. Benz, to file two additional reports on which he was afterwards deposed by the defense. Plaintiffs also submitted affidavits from certain class members explaining their personal experiences with the promotion system at Kelly. Two plaintiffs, Manuel Munoz, Jr. and Michael Galvan, submitted additional affidavits containing partial analyses of Kelly's promotion data. After discovery was closed for the second time, upon defendant's motion, the district court ordered summary judgment against plaintiffs.

Plaintiffs appealed the summary judgment to this court. We ordered a limited remand so that the district court could explain its reasoning. We now have before us the original appeal, the district court's order explaining its reasons for granting summary judgment, and supplemental briefs filed by the parties in response to the district court's explanation.

II. Analysis

The primary issues raised in this case are whether the district court properly excluded plaintiffs' expert's affidavits as being unreliable, whether plaintiffs' case should survive summary judgment even without their expert's statistical evidence, and whether any individual claims brought by plaintiffs survive the summary judgment order. Plaintiffs also argue that various rulings during the discovery period improperly deprived them of the opportunity to develop their case.

The litigation in the trial court has concentrated on plaintiffs' disparate impact class claims. As discussed below, issues have been raised in this appeal regarding a disparate treatment class claim and both disparate impact and disparate treatment individual claims.

In the context of Title VII litigation, we recognize two types of discrimination claims: disparate treatment and disparate impact. Disparate treatment refers to deliberate discrimination in the terms or conditions of employment, in this case, promotion, on account of race, national origin, or gender. The prima facie elements of a claim for disparate treatment are: (1) that the plaintiff is a member of a protected class under the statute; (2) that he applied and was qualified for a job or promotion for which his employer was seeking applicants; (3) that, despite his qualifications, he was rejected; (4) that afterwards the position remained open and the employer continued to look for candidates with plaintiff's qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Once that showing has been made, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. See id. at 802-03. The burden of persuasion, however, remains at all times with the plaintiff. See Texas Dept. of Community Affairs v. Burdine, 405 U.S. 248, 253 (1981). In order to win his disparate treatment claim, the plaintiff must then demonstrate that the reason articulated by the employer was pretextual, see McDonnell Douglas, 411 U.S. at 805, meaning a pretext for discrimination, per se. See St. Mary's Honor...