Thornton v. Coffey, 78-1702

• Decision Date: 28 March 1980
• Docket Number: No. 78-1702,78-1702
• Citation: 618 F.2d 686
• Parties: 22 Fair Empl.Prac.Cas. 709, 22 Empl. Prac. Dec. P 30,796 Henry D. THORNTON, Plaintiff-Appellee, v. Maj. Gen. John COFFEY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 686

618 F.2d 686

22 Fair Empl.Prac.Cas. 709,

22 Empl. Prac. Dec. P 30,796

Henry D. THORNTON, Plaintiff-Appellee, v. Maj. Gen. John COFFEY, Jr., Defendant-Appellant.

No. 78-1702.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 24, 1980.

Decided March 28, 1980.

Alfred Mollin, Atty., Dept. of Justice, Civil Division, App. Staff, Washington, D. C. (Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Larry D. Patton, U. S. Atty., Oklahoma City, Okl., and Robert E. Kopp, Atty., Dept. of Justice, Civil Division, App. Staff, Washington, D. C., with him on the brief), for defendant-appellant.

Lewis Barber, Jr., Oklahoma City, Okl., for plaintiff-appellee.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Henry David Thornton, a black, filed this action in district court seeking injunctive and monetary relief for alleged racial discrimination and retaliation by the Oklahoma National Guard, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16.

Thornton served in the regular Army from 1961 through 1970. In January, 1971, he joined the Oklahoma National Guard as a Captain, serving as a part-time or weekend soldier. The National Guard also employs people in full-time civilian jobs, although a person cannot hold a full-time position unless he is also a military member of the Guard. 32 U.S.C. § 709. In January, 1973, Thornton applied for a civilian job with the Guard as the Equal Employment Officer (EEO) for the state, a position he did not receive. In September, 1973, Thornton applied for another civilian position and was not selected.

On October 26, 1973, Thornton sent a letter to the Civil Service Commission alleging discrimination concerning his failure to be selected for the EEO position. A formal complaint was made to the National Guard on February 28, 1974. In March, 1975, an investigation and report were made by the Assistant Executive Officer, National Guard Bureau, Department of Army, in which no discrimination was found. Thereafter, Thornton requested a formal hearing on the matter, which was held before the U. S. Civil Service Commission. On December 19, 1975, a final decision was rendered finding no discrimination.

In the meantime, in connection with his military position in the Guard, Thornton was given an adverse Officer's Efficiency Report (OER) for the period from May 2, 1975 through August 10, 1975, which report was not rendered until February 2, 1976. He filed this action on February 27, 1976, alleging inter alia that the Guard unlawfully discriminated against him on the basis of his race when it refused to hire him for the civilian EEO position, and then retaliated against him for filing the discrimination complaint by its preparation of the adverse military OER.

Subsequently, Thornton was discharged from the National Guard on May 6, 1977, pursuant to the Reserve Officer Personnel Act. That Act requires any officer not promoted within three years to leave the Guard and accept a mandatory promotion into the Army Reserve. Thornton had failed to achieve promotion to Major within the required time. Upon his discharge from the military side of the Guard, Thornton was no longer eligible to hold a civilian position.

The trial court found that Thornton was denied the position of Equal Employment Officer for racial reasons, but made no findings concerning the adverse OER or Thornton's failure to receive a military promotion. The court ordered Thornton to be retroactively promoted to a civilian GS-11 grade, and awarded back pay in the amount he would have received if he had been given the EEO position, beginning on September 15, 1973. While the Guard was not ordered to immediately place Thornton as the EEO, Thornton was given the right of first refusal when the position becomes available. In addition, the court ordered Thornton reinstated in the Guard with a promotion to the rank of Major, retroactive to September 19, 1973. Thornton was awarded the corresponding back pay for this military promotion.

For reasons set out below, we affirm the trial court's award of back pay for the EEO position for the period of September 15, 1973 only up to May 6, 1977, the date on which Thornton was discharged from the Guard and became ineligible for the position. We reverse the trial court's order that the Guard reinstate Thornton and retroactively promote him to the military rank of Major. Consequently, we reverse the corresponding award of military back pay, and the order that Thornton be given the right of first refusal of the EEO position.

I. The Equal Employment Officer Position

The trial court found as a conclusion of law that Thornton established a prima facie case of racial discrimination in connection with his denial of the EEO position. ¹ It further concluded that the Guard failed to rebut this prima facie case with a valid business reason. The court based its legal conclusions on fact findings which support Thornton's qualifications for the job, and demonstrate both the Guard's past history of deliberate segregation and the absence of black officers in full-time civilian positions.

The findings of fact by a trial court must be upheld on appeal unless they are clearly erroneous. Fed.R.Civ.P. 52(a). We have held that findings are not to be determined clearly erroneous unless, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made. Diggs v. Western Electric Co., 587 F.2d 1070 (10th Cir. 1978). Our study of the record shows that the trial court's findings are supported by the evidence and are not clearly erroneous.

Thornton was required to first prove a prima facie case of employment discrimination under the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We believe he did this by showing that he 1) belongs to a racial minority; 2) that he applied and was qualified for a job for which the employer was seeking applicants; 3) that, despite his qualifications, he was rejected; and 4) that, after his rejection, the position remained available.

The only controverted issue in the finding of a prima facie case is whether Thornton was qualified for the position. The record shows that Thornton received very favorable officer efficiency ratings while in the Army. Rec., vol. III, at 116, 117, 118. Even the reports offered by the Guard show that Thornton was rated as superior with only one exception. Rec., vol. IV, Def.Ex. 6. He received an Army Commendation Medal in 1970. Rec., vol. III, at 108. His academic record shows specialized college-level education in race relations and minority groups. Rec., vol. III, at 121. His application for the EEO position lists impressive involvement in devising and teaching programs dealing in human relations for Oklahoma State University and the Post Office. Rec., vol. III, at 139. The trial court clearly had sufficient evidence to find that Thornton was qualified for the position he sought.

Once Thornton established a prima facie case, the Guard then had the burden of proving that the employment decision was based upon a legitimate, nondiscriminatory reason. Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1977). To meet this burden, the Guard contended it was justified in selecting another applicant, Colonel William Kelley, because Kelley had ranked higher than Thornton under the evaluation system used by the Guard. We find the use of this rating procedure by the Guard to be improper under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and affirm the trial court's finding of no valid business reason.

The Oklahoma National Guard was segregated by law until 1958. Rec., vol. V, at 100, 234-35. The Guard testified at trial that no black officer had ever been a full-time employee of the Guard. Rec., vol. V, at 100, 118. Kelley, who is white, has been a full-time Guard employee since 1956. The Guard admits that the rating procedure applied to Thornton and Kelley favored applicants who were already full-time civilian employees. Griggs holds that "under the Act (Title VII), practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." 401 U.S. at 430, 91 S.Ct. at 853.

It is beyond argument that a rating procedure used by an historically segregated employer which favors applicants already employed full-time falls squarely within the prohibition of Griggs. See Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th Cir. 1972); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). Any claim which the Guard might raise that the rating procedure was required by business necessity is obviated by the fact that the Guard stopped using the procedure well before trial, and implemented what it felt to be a better rating method. The new method does not prefer applicants already "on board". Rec., vol. V, at 109, 121.

The only other reason given for Kelley's selection for the EEO position was offered by Major General David Matthews, the selecting officer. He testified at trial that he had chosen Kelley because he had soldiered with him for twenty years and felt he could do the job. Rec., vol. V, at 83. He also testified that the affirmative action requirements placed upon the Guard did not enter into his decision. Rec., vol. V, at 86. The trial judge found this justification to be insufficient to rebut Thornton's prima facie case and noted that such a subjective determination may offer a convenient pretext for giving force and effect to racial prejudice, perhaps without a conscious effort by the decision maker. Abrams v. Johnson, 534 F.2d 1226 (6th Cir. 1976). We agree.

We affirm the trial judge's finding that Thornton's failure to be selected...