Smithers v. Bailar

• Citation: 629 F.2d 892
• Decision Date: 02 September 1980
• Docket Number: No. 79-2748,79-2748
• Parties: 23 Fair Empl.Prac.Cas. 1206, 24 Empl. Prac. Dec. P 31,219 SMITHERS, Harry J., Appellant, v. BAILAR, Benjamin F., Postmaster General, United States Postal Service and United States Postal Service.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 892

629 F.2d 892

23 Fair Empl.Prac.Cas. 1206,

24 Empl. Prac. Dec. P 31,219

SMITHERS, Harry J., Appellant, v. BAILAR, Benjamin F., Postmaster General, United States

Postal Service and United States Postal Service.

No. 79-2748.

United States Court of Appeals, Third Circuit.

Argued Aug. 4, 1980.

Decided Sept. 2, 1980.

Edward L. Welch (argued), Edwardsville, Ill., Pamela A. Baken, Englewood, N. J., for appellant.

Robert J. Del Tufo, U. S. Atty., Stephen D. Taylor, Asst. U. S. Atty. (argued), Newark, N. J., Stanely A. Mestel, Regional Labor Counsel, United States Postal Service, Washington, D. C., for appellees.

Before ALDISERT and SLOVITER, Circuit Judges, and HANNUM, District Judge. ^*

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The question for decision is whether the district court applied improper legal precepts in deciding against a postal employee in an action brought against the United States Postal Service under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to e-17. Following submission of the case on the administrative record, the district court rendered judgment in favor of the Postal Service. The employee, Harry J. Smithers, has appealed. Determining that there was no error, we affirm.

Appellant, a black male, was 64 years of age in 1975 when he applied for the postmaster's position at the Montclair, New Jersey post office. At that time he was Montclair's assistant postmaster. The National Management Selection Board, charged with the responsibility of filling the position, interviewed appellant and two others on June 6, 1975. At the conclusion of the interviews, the Board unanimously agreed that the post would go to John J. Barry, then 37 years of age. The executive secretary of the Board summarized the Board's reasons for the decision:

The Board members found Mr. Barry to have excellent potential beyond Montclair. Very capable but vague in some of his answers. Has a broad picture of postal operations even though he lacks extensive operations experience in a large facility. Has an in-depth view of problems. Articulate. Knowledgeable in dealing with people. Operated a medium size post office.

Smithers v. Bailar, Civ. No. 77-0949 (D.N.J. Sept. 28, 1979). With respect to appellant, the secretary noted:

Mr. Smithers has done well working his way up the career development ladder. Good experience. Vague in his answers. Wants the title of postmaster for prestige. Could hold fort but question his judgment of the managers in his office. A product of the seniority system. Very personable.

Id. at 8.

Appellant thereafter initiated administrative proceedings alleging age and race discrimination. A hearing was conducted before an Equal Employment Opportunity complaints examiner from the United States Civil Service Commission on January 13 and 14, 1977. The complaints examiner's findings and recommended decision concluded that the reasons appellant was not chosen to be the Montclair postmaster were unrelated to race or age. The Postal Service adopted the examiner's findings and conclusions. Thereafter the Equal Employment Opportunity Commission issued a right to sue letter and appellant filed the present civil action in the district court. The parties stipulated to certain evidence and agreed that the issues of age and race discrimination would be submitted without testimony or evidence other than that contained in the transcript of the administrative record. They also agreed to allow the court to "make whatever credibility resolution and evidentiary decision . . . may be necessary . . . ." Id. at 2 n.2.

I.

The district court's analysis of the age discrimination claim began with an inquiry whether appellant had established a prima facie case of age discrimination by satisfying the four criteria set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973):

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

Quoted in Smithers at 12-13.

Although these guidelines arose in the Title VII context, they have been deemed applicable to cases arising under the ADEA. Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978); see Holliday v. Ketchum, McCleod & Grove, Inc., 584 F.2d 1221, 1231 n.1 (3d Cir. 1978) (in banc) (Hunter, J., concurring); cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (analogous sections of ADEA and Title VII to be construed similarly); but see Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). Appellant concedes in his brief that "(t)here appears to be no dispute on this issue, that the McDonnell Douglas criteria (apply) to age discrimination cases." Appellant's Brief at 25. Notwithstanding its applicability, the Supreme Court has recently warned that the McDonnell Douglas methodology should never be applied in a "rigid, mechanized, or ritualistic" manner. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Rather, the Court has instructed that "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." Id. The Court explained that a prima facie case raises an inference of discrimination only because the conduct at issue is presumed to be based on consideration of impermissible factors in the absence of another explanation. Thus the inference dissolves when the employer shows a legitimate, non-discriminatory reason for the conduct. Id. In Furnco, the Court of Appeals went awry by equating a prima facie showing under McDonnell Douglas with an ultimate finding of a Title VII violation. As the Supreme Court noted, the two are different and maintaining this distinction is essential. The district court in the present case carefully avoided the lower court's error in Furnco.

A.

The district court first determined that appellant had established a prima facie case of age discrimination:

He has shown that (1) he belonged to the protected class, (2) that he applied and was qualified for the position of Postmaster and could reasonably expect selection under the post office's ongoing competitive promotion system, (3) that he was not appointed despite his qualifications, and (4) that the position was ultimately filled by an employee who was younger than plaintiff.

Smithers at 13. Consistent with the rule of McDonnell Douglas and Furnco, however, the court did not end its inquiry at this point.

The court then examined the defendant's burden to dispel the adverse inference from a prima facie showing under McDonnell Douglas, and concluded that the employer must "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Furnco Construction Corp. v. Waters, 438 U.S. at 578, 98 S.Ct. at 2950. See also Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam); Worthy v. United States Steel Corp., 616 F.2d 698, 701 (3d Cir. 1980); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977). After considering the filed affidavits and testimony relating to the alleged factors that gave rise to the appointment of Barry, the court concluded that the defendants had fulfilled their burden of producing evidence of a non-discriminatory basis for the Board's action. In reviewing the administrative proceedings, the district court noted the Board's concession that Smithers was the most qualified applicant on the basis of employment history and experience, and that both Barry and Smithers were equally knowledgeable in the areas of policy, procedure, and operation. Nevertheless, the "general concern" of the Board, as found by the court, was that "Barry was more articulate and could present himself and his position more clearly than could Smithers." Smithers at 15. The significance of the interviews, at which these subjective assessments were made, was emphasized by each Board member in individual affidavits. Id.

The complaint examiner reached a similar conclusion:

Mr. Barry's more favorable presentation provided a reasonable basis for his being recommended. There is no evidence of pretext, nor is there any evidence of discriminatory animus on the part of any Board member. Additionally, the record shows that the Board did not base its decision on any standard or evaluation device which had a discriminatory impact on the complainant on the basis of his race or age.

Id. (quoting EEO Complaint Examiner Report, app. at 377). On this basis the EEOC denied appellant's claim.

B.

Satisfied that appellee had established a valid non-discriminatory reason for rejecting appellant, the district court addressed appellant's argument that these reasons were merely a pretext for illegal discrimination. Smithers at 15. The district court was impressed by the Board's findings that Barry was more articulate, that his managerial capability was more developed, and that Smithers did not display every nuance of good judgment in his assessment of the abilities of the various office managers.

Some evidence in the record indicated that the Board considered the applicants' "potential", looking beyond the postmastership at Montclair. This evidence related to a possible consideration of age. Even considering...