Davis v. Califano, 78-1398

• Decision Date: 14 February 1980
• Docket Number: No. 78-1398,78-1398
• Citation: 613 F.2d 957,198 U.S. App. D.C. 224
• Parties: 21 Fair Empl.Prac.Cas. 272, 21 Empl. Prac. Dec. P 30,363, 198 U.S.App.D.C. 224 Barbara DAVIS, Appellant, v. Joseph A. CALIFANO et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 957

613 F.2d 957

21 Fair Empl.Prac.Cas. 272,

21 Empl. Prac. Dec. P 30,363, 198 U.S.App.D.C. 224

Barbara DAVIS, Appellant, v. Joseph A. CALIFANO et al.

No. 78-1398.

United States Court of Appeals District of Columbia Circuit.

Argued April 26, 1979.

Decided Nov. 8, 1979.

As Amended Feb. 14, 1980.

Gwendolyn Jo M. Carlberg, Alexandria, Va., for appellant.

Paula J. Page, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before WRIGHT, Chief Judge, and MacKINNON, Circuit Judge, and AUBREY E. ROBINSON, Jr. ^*, United States District Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by District Judge AUBREY E. ROBINSON, Jr.

Dissenting opinion filed by Circuit Judge MacKINNON.

AUBREY E. ROBINSON, Jr., District Judge:

Appellant, Dr. Barbara Davis, is a white female employee at the National Heart, Lung and Blood Institute (NHLBI), National Institutes of Health (NIH), of the United States Department of Health, Education and Welfare (HEW). She alleged unlawful discrimination against her based on her sex, in hiring, promotions, and other conditions of employment, in violation of Title VII of the Civil Rights Act of 1964, as amended by the Equal Opportunity Act of 1972, 42 U.S.C. § 2000e, Et seq. ¹ Appellant's Complaint sought damages, back pay, overtime pay, promotion to a GS-13 level position, declaratory, injunctive, and other relief. Following a trial De novo, ² the district court dismissed Appellant's Complaint and entered judgment for Appellee pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. FACTS

Appellant received a Bachelor of Science Degree in 1968 prior to beginning work at NIH. ³ She was hired as a GS-5 chemist in March, 1968. ⁴ Shortly thereafter, Appellant was transferred to the intramural research division of NHLBI. ⁵ Although most of the GS-5 chemists at NHLBI intramural research were promoted to a GS-7 after one year of service, ⁶ Appellant was not promoted to the GS-7 level until June, 1970. ⁷ The district court found that the delay in Dr. Davis' promotion was due to an administrative oversight, and that, when the oversight was noticed, Appellant was promoted and an effort was made to recompense her by paying all of her tuition and purchasing many of her books for her work on her Master's Degree. ⁸

Appellant received her Master's Degree in early 1973, ⁹ and a Ph.D. in chemistry in February, 1977. ¹⁰ Appellant was promoted to GS-9 level in November, 1975, and remains a GS-9 today. ¹¹ Several male chemists were promoted to GS-9 level with less time in grade than Appellant. ¹² Dr. Davis is in the 13-20 Series for Chemists. ¹³ The district court found that this series had a normal career ladder from a GS-5 through a GS-9 level. ¹⁴ Positions above the GS-9 level were filled by the Senior Scientific Research Staff.

Generally, promotions from GS-7 to GS-9 were initiated by individual supervisors. Their recommendations would be reviewed by the branch chief, and, if approved, would then be submitted to an independent promotion panel. This procedure was designed to advance a process of grade de-escalation then underway. No criteria existed to guide supervisors, branch chiefs, or promotion panels in determining whether a promotion was justified. Nor were there criteria specified for selection of promotion panels. Rather, promotion panels were composed on an Ad hoc basis of professional scientific staff members. ¹⁵ As will be discussed later, the professional scientific staff was predominantly male. ¹⁶

The qualifications for a senior scientific research staff position of independent investigator, the position sought by Dr. Davis, are the capability of perceiving a specific research problem and developing a hypothesis and protocol for determining its truth or falsity. ¹⁷ An independent investigator position is usually, although not always, held by a person with a Ph.D. or an M.D. degree. ¹⁸ NIH had created a staff fellowship program for new Ph.Ds., to permit them the opportunity to both develop and prove their capabilities to function in the innovative and creative manner required of independent investigators. ¹⁹ An inexperienced Ph.D. is almost never hired as an independent investigator without first participating in the staff fellowship program. ²⁰

II. APPELLANT'S STATISTICAL EVIDENCE

The abundant relevant statistical data presented to the trial court may be divided roughly into three categories: (1) data indicating disparity in grade and salary structure between male and female employees at NIH and NHLBI; (2) data indicating disparity in promotion rates of men and women employees at NIH and NHLBI; and (3) data indicating disparity in grade and salary structure of male and female employees at NHLBI with regard to their education.

The category one statistics reveal that the upper grade and salary structure at NIH and NHLBI is overwhelmingly made up of male employees. For example, as of September, 1975, 36.1% Of all male NIH employees held positions at or above the GS-13 level, while only 4.8% Of female employees held positions at those levels. Appellant's statistics indicate that these figures varied little from similar figures for January, 1972. ²¹ In September, 1975, 78.7% Of NIH employees holding GS-13 level positions were male and 21.3% Were female. ²² Approximately 39.2% Of all the GS rated employees at NIH in September of 1975 were men; 60.8% Were women.

For fiscal year 1976, 46.2% Of all male NHLBI employees held positions at or above the GS-13 level, while only 7.3% Of female NHLBI employees held positions at those grade levels. ²³ For this same period of time, 68.4% Of NHLBI employees holding GS-13 level positions were male and 31.6% Were female. ²⁴ 40.5% Of the GS rated employees at NHLBI were males at that time, and 59.5% Were females.

The category two statistics indicate that the rate of promotions at higher levels was much higher for male GS employees at NIH and NHLBI than for female GS employees. For example, in fiscal year 1974, 55.8% Of the professional NIH GS employees who were promoted were women. Approximately 58% Of the professional male NIH employees who were promoted were at the GS-13 level and above while only 12.1% Of the professional female NIH employees who were promoted were at GS-13 and above. ²⁵

For the years 1972-1976, 37.7% Of the male employees at NHLBI who were promoted were at the GS-13 level and above, as compared to 4.8% Of the female employees at NHLBI who were promoted. ²⁶

Category three statistics show that, among employees with doctorate degrees, there is a tendency for males to be employed at higher grade levels than females. For example, of the professional employees at NHLBI in October, 1975, 81% Of the males with Ph.Ds. held GS-14 positions or above, while only 41.2% Of the females with Ph.D. degrees were in GS-14 positions or above. ²⁷

In October of 1975, male professional employees at NHLBI holding Ph.D. degrees had an average grade of 14.22, while the corresponding average grade for female Ph.Ds. was 13.47. ²⁸ For that same year, the average grade level for male NHLBI chemists within the division of Intramural Research was 14.28, and the average grade level for female NHLBI chemists within that division was 13.29. ²⁹

III. PRIMA FACIE CASE

The primary issue on appeal is whether the trial court erred in its determination that Dr. Davis failed to make out a Prima facie case of discriminatory promotion practices. ³⁰ In particular Appellant challenges the district court's Conclusions of Law that (1) statistics alone may not prove a Prima facie case in an individual, as opposed to a class action, discrimination case, ³¹ and (2) Appellant's statistics were irrelevant because they included no information on the qualifications of those available for promotions. ³² For the reasons discussed below, this Court concludes that the trial court erred and that the action must be reversed and remanded.

A Title VII plaintiff carries the initial burden of presenting a Prima facie case of employment discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

The method suggested in McDonnell Douglas for pursuing this inquiry . . . was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.

A McDonnell Douglas prima facie showing is not the equivalent of a factual finding of discrimination . . . . (I)t is simply proof of actions taken by the employer from which we infer discriminatory animus because experience has proved that in the absence of any other explanation it is more likely than not those actions were bottomed on impermissible considerations.

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 2949, 2951, 57 L.Ed.2d 957 (1978). After a Prima facie case has been made, the burden shifts to the employer to "prov(e) that he based his employment decision on a legitimate consideration, and not an illegitimate one such as race." Furnco, supra, 98 S.Ct. at 2950. See also Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 259 (3rd Cir. 1972). The burden of persuasion then shifts back to the plaintiff, who "must be given the opportunity to introduce evidence that the proferred justification is merely a pretext for discrimination." Furnco, surpa, 98 S.Ct. at 2950.

A. Statistical Evidence In An Individual Employment Discrimination Case

Statistical evidence is merely a form of circumstantial evidence from which an...