Danner v. U.S. Civil Service Com'n, 79-3545
| Decision Date | 27 January 1981 |
| Docket Number | No. 79-3545,79-3545 |
| Citation | 635 F.2d 427 |
| Parties | 25 Fair Empl.Prac.Cas. 1634, 25 Empl. Prac. Dec. P 31,550 Joy B. DANNER, and on behalf of other persons similarly situated, Plaintiffs- Appellants, v. UNITED STATES CIVIL SERVICE COMMISSION et al., Defendants-Appellees. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert L. Danner, Jr., New Orleans, La., for plaintiffs-appellants.
Elizabeth A. O'Connell, New Orleans, La., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GOLDBERG, GARZA and TATE, Circuit Judges.
The plaintiff Joy Danner, a black employee with the New Orleans Passport Agency within the United States Department of State, appeals the district court's dismissal of her action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., based on alleged racial discrimination in promotion practices of that agency. The district court held that the plaintiff had established a prima facie case under McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), but that the defendants had successfully rebutted the case by showing legitimate, non-discriminatory reasons for their failure to promote the plaintiff. Although the excellent and detailed opinions of both magistrate and district court correctly hold that the defendants had successfully rebutted most of the contentions of discriminatory treatment alleged, we remand for an additional finding with regard to a change in procedure in mid-course of the promotion determination, without which finding we are unable to conclude that the defendants met their burden as to proving non-discriminatory motive in such change. In other respects, the judgment is affirmed.
On appeal, the plaintiff chiefly urges the following as reversible error: (1) the district court's finding that the defendants showed by a preponderance of the evidence that their decision not to promote the plaintiff was based upon legitimate, non-discriminatory reasons; (2) the district court's failure to find that the plaintiff proved by a preponderance of the evidence that the defendants' articulated reasons for non-promotion were a pretext.
The New Orleans Passport Agency is a federal agency under the jurisdiction of the Department of State whose purpose is to process passport applications and prepare and issue passports. In May of 1973, the plaintiff, Ms. Danner, a black woman, began work for that agency as a GS-4 clerk-typist. In October, 1974, Ms. Danner was promoted within the New Orleans Passport Agency to a GS-5 clerk-typist. Clerk-typists are non-professional personnel who perform typing, clerical work, cashiering, telephone duties, and production work on the passport documents. The New Orleans Passport Agency also employs passport examiners at levels GS-5 through 9 (professional employees), who deal with and interview the public and adjudicate the legal sufficiency of passport applications through the application and interpretation of detailed agency regulations and guidelines.
In October, 1975, a vacancy at the passport examiner level GS-5 was announced. As required, Ms. Danner made a timely written request for consideration for one of the available vacancies. Subsequently, agency officials, headquartered in Washington, D.C., determined that the plaintiff possessed the minimum qualifications necessary to be considered as an eligible candidate, and her name was included with the panel listing of eligible applicants totalling twelve in number. Prior to the compilation of the panel listing of eligible candidates, 1 the New Orleans Passport Agency agent-in-charge Hart, and the assistant agent-in-charge Rogers, determined that of the four passport examiner positions vacant, two would be filled by candidates from among the list of twelve sent from headquarters (in-house), and two would be selected from a list of persons who had passed the Professional and Administrative Careers Examination (PACE) provided by the United States Civil Service Commission. The decision to consider PACE eligible candidates to fill the vacancies was within the discretion of the local agency.
Ms. Rogers, the assistant agent-in-charge who was responsible for selecting the two in-house employees from the list of twelve, personally interviewed nine of the eligible candidates (three had previously withdrawn their names from consideration). On the basis of these interviews and her consideration of the data contained in their personnel files, she recommended to the agent-in-charge Hart the two candidates she considered most qualified to fill the vacancies. The two candidates recommended by Rogers and approved by Hart were Kathleen Voth (a white female) and James Vitt (a white male). Voth accepted the job offer, but Vitt declined it for personal reasons.
Despite the initial decision to fill two of the vacancies from in-house applicants and the fact that, following Vitt's rejection of the employment offer, only one vacancy allocated to in-house applicants remained open, Hart then decided to fill all three as opposed to only two of the remaining vacancies from the list of PACE eligible candidates. Three whites were eventually selected from this source to fill the remaining passport examiner vacancies.
On March 12, 1976, the plaintiff filed a complaint with the Department of State in which she alleged she was denied a promotion to one of the passport examiner vacancies because of her race. After 180 days had passed, the Department had still not issued a decision and, therefore, on September 8, 1976, the plaintiff filed this civil action pursuant to 42 U.S.C. § 2000e-16(c) 2 as a class action. Named as defendants were: the New Orleans Passport Agency, the United States Civil Service Commission and its individual commissioners, the United States Department of State, and the Secretary of State. 3 The district court denied Ms. Danner's Motion to Certify the Class, and the action proceeded to trial before a magistrate as an individual suit.
The district court upheld the magistrate's Trial Findings and Recommendation in favor of all the defendants as not clearly erroneous, and ordered that judgment be entered in favor of all the defendants and against the plaintiff Ms. Danner.
The plaintiff contends, as earlier noted, that the district court erred in finding that the defendant's decision not to promote her was based on non-discriminatory reasons and in failing to find that the articulated reasons were pretextual.
In reviewing the district court's determination that the plaintiff failed to prove her allegations of racial discrimination, the reviewing court must make an independent determination of the ultimate fact issue of discrimination, although it is bound by the district court's findings of subsidiary fact which are themselves not clearly erroneous. Causey v. Ford Motor Company, 516 F.2d 416, 421 (5 Cir. 1975). See also Ramirez v. Sloss, 615 F.2d 163, 169 (5th Cir. 1980). In this regard, it must be determined whether there exists the requisite subsidiary facts to support the ultimate factual finding of non-discrimination. East v. Romine, Inc., 518 F.2d 332, 339 (5th Cir. 1975); Humphrey v. Southwestern Portland Cement Company, 488 F.2d 691, 694 (5th Cir. 1974).
The Title VII plaintiff alleging racial discrimination must carry the initial burden of establishing a prima facie case. This may be done by showing: (1) that she belongs to a racial minority; (2) that she applied and was qualified for a job for which her employer was seeking applicants; (3) that despite her qualifications, she was rejected; and (4) that, after her rejection, the position remained open and the employer continued to seek applicants from persons of her qualifications. McDonnell Douglas Corporation v. Green, supra, 411 U.S. at 802, 92 S.Ct. at 1824. The district court found, and we agree, that the plaintiff met her initial burden of establishing a prima facie case of racial discrimination. Ms. Danner proved that: (1) she was black; (2) she applied for a promotion to one of the vacant passport examiner positions; (3) she was qualified; 4 and (4) she was rejected by her supervisors in favor of eligible candidates who were not members of a racial minority.
Once the plaintiff establishes a prima facie case of racial discrimination, the defendant is required to articulate a legitimate, non-discriminatory reason for its promotion decision. McDonnell Douglas Corporation v. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1824; Ray v. Freeman, 626 F.2d 439, 443 (5th Cir. 1980). To satisfy this burden of proof we require the employer to come forward with comparable factual data relating to those he hired instead of the prima facie discriminatee, in order to support his claim that no discriminatory motive caused him to pass over the protected-minority applicant. East v. Romine, Inc., 518 F.2d 332, 339-340 (5th Cir. 1975).
With regard to the initial selection of two of the in-house applicants from the nine eligibles (including Ms. Danner), it is sufficient to say that we do not find to be clearly erroneous the determination that those two were better qualified than the plaintiff Danner, so that under East v. Romine, supra, the employer has proved a non-discriminatory purpose in their selection. Likewise, the various other contentions of discriminatory treatment, with the exception of the "second pass over" claim to be noted below, were rejected in findings not clearly erroneous. The excellent opinions of the district judge and the magistrate detail the evidence and the basis for these findings, which are not clearly erroneous and find adequate support in the record.
Second "Pass Over"
The plaintiffs additionally allege, and re-urge on this appeal, that the defendants have not...
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