Aikens v. U.S. Postal Service, Bd. of Governors

• Decision Date: 20 November 1980
• Docket Number: No. 79-1574,79-1574
• Parties: 23 Fair Empl.Prac.Cas. 1142, 23 Empl. Prac. Dec. P 31,144, 24 Empl. Prac. Dec. P 31,347, 206 U.S.App.D.C. 109 Louis H. AIKENS, Appellant, v. UNITED STATES POSTAL SERVICE, BOARD OF GOVERNORS, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 514

642 F.2d 514

23 Fair Empl.Prac.Cas. 1142,

23 Empl. Prac. Dec. P 31,144,

24 Empl. Prac. Dec. P 31,347, 206 U.S.App.D.C. 109

Louis H. AIKENS, Appellant, v. UNITED STATES POSTAL SERVICE, BOARD OF GOVERNORS, Appellees.

No. 79-1574.

United States Court of Appeals, District of Columbia Circuit.

Argued April 28, 1980.

Decided July 31, 1980.

Dissenting Opinion Sept. 9, 1980.

Dissenting Opinion from Motions to Grant Extension of Time

to File Rehearing

Oct. 14, 1980.

Rehearing Denied Nov. 20, 1980.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 77-0303).

L. Harold Aikens, Jr., Washington, D. C., for appellant.

Elliot R. Warren, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed and John A. Terry, Asst. U. S. Atty., Washington, D. C., was on the brief, for appellees.

Before WILKEY, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge WILKEY.

EDWARDS, Circuit Judge:

Plaintiff-appellant, Louis H. Aikens, instituted this action under Title VII of the Civil Rights Act of 1964, 78 Stat. 241, 253, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq., seeking redress of alleged discrimination on the basis of race in his employment with the United States Postal Service. Aikens, who is now retired from the Postal Service, requested relief in the form of retroactive promotions, commensurate retroactive pay benefits, and attorneys' fees. The District Court found that Aikens had failed to make out a prima facie case of racial discrimination under Title VII and ordered that the action be dismissed with prejudice. Aikens now appeals from the District Court decision. For the reasons outlined below, we hereby reverse the decision of the District Court and remand the matter for further proceedings consistent with our judgment in the case.

I.

Aikens is a black man who began his employment with the Post Office in Washington, D.C. in 1937. He was promoted to his first supervisory position in 1952; subsequently, between 1952 and 1960, Aikens held various jobs at the level of foreman. From 1960 to 1966, he received six promotions that raised him from the foreman level (ranked PFS-7) to the level of Assistant Director, Operations Division for Transit Mails (PFS-15). In 1974, Aikens was upgraded twice, once by virtue of a promotion and once pursuant to a "detail" (temporary assignment). Between 1966 and 1974, however, Aikens was neither detailed nor promoted above his Assistant Director position. His failure to be promoted during this latter period forms the basis of this Title VII suit.

Under applicable Postal Service procedures, an employee who desires consideration for supervisory promotions is required to indicate his job preferences on a Form 1717. Following that procedure, during the entire period from 1966 through 1973, Aikens had on file the appropriate Form 1717 seeking consideration for promotion to any Post Office position ranked above his PFS-15 job. Between 1966 and 1973, there were only four positions in the Washington, D.C. Post Office that were ranked above PFS-15. During that period, several white employees, all with less seniority than Aikens, were promoted above him. After the Job Evaluation Program in 1973, Aikens' job was rated at grade PES-20; however, following the implementation of the Job Evaluation Program, several additional positions were rated above Aikens' job and several junior white employees received details or promotions above Aikens.

Aikens filed an Equal Employment Opportunity complaint with the Postal Service on January 4, 1974. An existing Civil Service Regulation, 5 C.F.R. § 713.214 (1974), required that complaints be filed within thirty days of the alleged discriminatory action. Under this statute of limitations standard, Aikens' complaint was timely only as to four positions for which promotions or details had occurred within thirty days of the complaint; the four positions in question were Mail Processing Officer, Acting Mail Processing Representative, Director, Operations Division, and Customer Services Representative. ¹ Accordingly, administrative and judicial review of Aikens' employment discrimination claim was properly focused on Aikens' failure to be promoted to these four positions. ²

Following an administrative review, the Postal Service concluded that the evidence of record did not support Aikens' allegation of racial discrimination. This judgment was affirmed by the Appeals Review Board of the Civil Service Commission. Aikens then filed his Title VII complaint in the District Court, which held a trial de novo on his claim of employment discrimination. Aikens here appeals a judgment rendered in favor of the Postal Service.

II.

In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court articulated the standard that must be met in order for individual complainants to make out a prima facie case of discrimination under Title VII:

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.

411 U.S. at 802, 93 S.Ct. at 1824. The Court recognized that the varying factual situations seen in Title VII cases require the application of a flexible formulation for this prima facie proof. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In essence, McDonnell Douglas requires an individual bringing suit under Title VII to demonstrate that the alleged discrimination did not result from a lack of qualifications or the absence of a vacancy in the job sought. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). Thus, it has been held that the McDonnell Douglas test, adopted to fit the factual circumstances of the case, applies in individual actions involving charges of race discrimination in promotion decisions. President v. Vance, 627 F.2d 353 at 364 n. 78 (D.C.Cir.1980); Rich v. Martin Marietta Corp., 522 F.2d 333, 346-47 (10th Cir. 1975).

On the record in this case, it is clear that Aikens met the first, third and fourth elements of the test set forth in McDonnell Douglas: he is a black man; he sought promotion to higher level positions that became available; and white Post Office employees received the positions. Therefore, it is the second element of the test, having to do with Aikens' qualifications to perform the jobs here in question, that must be addressed in our consideration of this appeal. ³

III.

Upon review of the evidence submitted to the District Court, we are convinced that Aikens offered ample evidence, which was not contested, to demonstrate his qualifications to perform the work in issue. To begin with, we note that the District Court made no finding that Aikens was not qualified for the positions in dispute. Moreover, Aikens' own record of accomplishments attests to his qualifications. He is highly educated, having earned a Master's degree and completed several years of course work towards a Ph.D. Aikens had almost forty years of experience with the Post Office, during which time he held a number of different supervisory positions. Nothing indicates that his performance was ever less than satisfactory. Indeed, his work record indicates that he participated in training and development courses and seminars designed to enhance his performance on the job.

Another indication of Aikens' qualifications was his nomination by Post Office officials for several promotions. During the selection process that occurred before the 1973 Job Evaluation Program, the Regional Office made Aikens one of the candidates for the Postmaster position. Stipulation 35. In addition, when two other positions (including one of those at issue in this case) were filled in 1972, Aikens was the second choice of the Promotion Advisory Board. Stipulation 25-26. If both the Regional Office and the Promotion Advisory Board believed him to be qualified for these higher positions, it seems unlikely that he would not be qualified for the four positions in question here.

The promotions that Aikens received in 1974 also attest to his qualifications to perform work at higher levels of employment. Only a few days after Aikens had filed his employment discrimination complaint in January 1974, he received a promotion to Area Logistics Manager, ranked at job grade PES-21. Shortly thereafter, he was detailed to the position of Assistant Manager of Distribution, PES-24. The very fact of an employee's ultimate promotion has been found to demonstrate that the employee is qualified for promotion. Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169, 178 n. 18 (1st Cir.), vacated and remanded on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), judgment of district court affirmed following remand, 604 F.2d 106 (1st Cir. 1979).

In its factual finding number 14, the District Court focused on Aikens' unwillingness to accept lateral transfers and noted that promotion depended in part on experience previously attained in various management positions. See also findings 10, 13. In so finding, the District Court opinion suggests both that the experience Aikens sacrificed, by declining lateral transfers, was a requirement for promotion and that the lack of that experience reflected adversely on his ability to perform the jobs at issue here. We note, however, that the Postal Service adduced no evidence to...