Bauer v. Bailar

• Decision Date: 27 April 1981
• Docket Number: No. 79-1958,79-1958
• Citation: 647 F.2d 1037
• Parties: 25 Fair Empl.Prac.Cas. 963, 26 Empl. Prac. Dec. P 31,799 June L. BAUER, Plaintiff-Appellant, v. Benjamin F. BAILAR, Postmaster General, U. S. Postal Service, Joseph F. Morris, Regional Postmaster General, Western Region, and Peter M. Thome, Postmaster, Englewood, Colorado, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1037

647 F.2d 1037

25 Fair Empl.Prac.Cas. 963,

26 Empl. Prac. Dec. P 31,799

June L. BAUER, Plaintiff-Appellant, v. Benjamin F. BAILAR, Postmaster General, U. S. Postal

Service, Joseph F. Morris, Regional Postmaster

General, Western Region, and Peter M.

Thome, Postmaster, Englewood,

Colorado,

Defendants-

Appellees.

No. 79-1958.

United States Court of Appeals, Tenth Circuit.

April 27, 1981.

Leslie M. Lawson, Feiger & Lawson, Denver, Colo. (Brenda Taylor, Lynn D. Feiger, Feiger & Lawson, Denver, Colo., with her on the brief), for plaintiff-appellant.

William C. Danks, Asst. U. S. Atty., Denver, Colo. (Joseph Dolan, U. S. Atty., Denver, Colo., with him on the brief), for defendants-appellees.

Before SETH, Chief Judge, McWILLIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The plaintiff, June L. Bauer, who is also the appellant, sought a supervisory position in the Englewood Post Office and was denied it. Five positions were open at the time. Mrs. Bauer asserts that she was the victim of discrimination based on gender or sex. She exhausted her administrative remedies as required by the Civil Rights Act, 42 U.S.C. § 2000e-16, and then filed a complaint in the United States District Court for the District of Colorado. She sought declaratory, injunctive and monetary relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Following a two day trial, the trial judge ruled against Mrs. Bauer. The judge found and held that the failure to promote her was not the result of discrimination based on sex. He also rejected her claim that she was a victim of retaliation contrary to 42 U.S.C. § 2000e et seq. However, this latter aspect of the case is not now before us.

Mrs. Bauer contends that the trial court erred in failing to infer from the evidence presented that sex discrimination had been demonstrated in her prima facie case, and in failing to find that defendants' reasons for her not being promoted were pretextual. More specifically, appellant maintains that the trial court failed to sufficiently weigh:

1) statistical evidence offered,

2) subjective aspects of the selective process,

3) her experience and hence superior qualifications, and

4) the directives of the affirmative action plan which had been adopted by the defendants.

In addition, she argues that the trial court erred in requiring her to prove discriminatory intent by direct evidence.

Mrs. Bauer has been employed by the Postal Service since 1966. She has been at the Englewood branch since May, 1967. Most of her work has consisted of clerical work as a Window Distribution Clerk, providing services to people who come to the window.

In 1975, five positions for initial level supervisors in the Englewood Post Office became available. Two supervisors of mails, two supervisors of collection and delivery and one supervisor of window services were to be appointed. Supervisor of Window Services was a newly authorized position. Prior to 1975 window services were under the supervision of a finance supervisor in the morning hours and a supervisor of mails in the afternoon.

What are the requirements for obtaining a supervisory position? The requirements and procedure for selection of initial level supervisors are set forth at length in post office regulations (Ex. 13). First, an employee must have worked at least one year for the post office. Secondly, a written examination must be taken. Scoring is based on a national norm and is expressed in percentiles which represent how well each examinee performed in relation to all other examinees. Thereafter, the head of an installation in which a position is to be filled establishes a cut-off score. Applicants with adequate test scores are evaluated on work performance and supervisory potential by their immediate supervisors. Applicants who receive A ratings from their supervisors are then interviewed and evaluated by an advisory panel consisting of supervisors appointed by the installation head. The panel certifies a list of the best qualified candidates to the local postmaster who makes the final selection.

Thirty-one applicants took the initial level supervisory test in applying for any one of the five positions. The Postmaster, Mr. Peter M. Thome, established 50 as the cut-off examination score. Twenty-three of the examinees, including the four females who took the test, had scores of 50 or better. These 23 individuals were then evaluated by their immediate supervisors. Five candidates, including one of the females, failed to receive A ratings from their supervisors. Clifford L. Koon, Mrs. Bauer's immediate supervisor, had evaluated her in December 1974 and had given Mrs. Bauer a B rating. In June 1975 Mr. Thome, apparently with Mr. Koon's concurrence, upgraded Mrs. Bauer's rating to A. Thus she was one of the 18 candidates who were interviewed by the advisory panel. There were five members of the advisory panel. The members of this panel were Dorothy Eaton, Chairperson; Joseph A. Dick; Roy Thompson; Phillip Kirton, and Clifford L. Koon. Koon and Kirton were supervisors in the Englewood Post Office. The other members held supervisory level positions at other post office installations. Interviews were then given to each of the remaining candidates over a two day period. Forms were provided on which each panel member rated each interviewee on a variety of points. The testimony at the trial was that the panel considered the interviews and personnel files, including supervisor evaluations, in scoring the candidates.

Originally the panel had determined to submit nine names to Mr. Thome. Following the interviews each panel member cast nine votes by secret ballot. Candidates Chapman, Sidebottom, Martelli, Barker Jeffers and Trujillo each received five votes. Candidates Whitcomb and Dryden each received three votes. Candidates Bauer, Kodis and Perri each received two votes, resulting in a three way tie for the ninth position. A second secret ballot was cast in which Bauer and Perri each received two votes while Kodis received one vote. The panel determined to submit a total of ten names to Postmaster Thome, including Bauer and Perri. The panel members, again by secret ballot ranked the candidates from one to ten. Although Mr. Koon ranked Mrs. Bauer second, her ranking by the other panel members placed her tenth. The other woman among the final ten, Geraldine Perri, was ranked ninth. The remaining eight candidates ranked as follows: Chapman, Sidebottom, Martelli, Barker, Jeffers, Trujillo, Whitcomb, Dryden.

The ten names were submitted to Postmaster Thome in ranked order. Thome verified that the names were in fact ranked. He learned this by inquiry to one or two panel members. The testimony was that the regulations are silent on whether an advisory panel should or should not rank candidates for promotion. Such rankings are not, however, uncommon. Postmaster Thome testified that he reviewed the list in light of his own knowledge of the candidates; that he considered the requirements of the positions to be filled and consulted with his two managers, Mr. Koon and Mr. Kirton. Thome then placed the top five ranked candidates in the positions for which he felt each was the best qualified. Bobby L. Barker was placed in the Supervisor of Window Services position.

I.

The starting point in reviewing the decision of the trial court is to refer to the applicable procedure. The trial court's findings are entitled to very careful consideration; they are to be disturbed on appeal only if clearly erroneous. Thornton v. Coffey, 618 F.2d 686 (10th Cir. 1980); Olson v. Philco-Ford, 531 F.2d 474 (10th Cir. 1976). In the final analysis the test is whether the appellate court is left with the definite and firm conviction that a mistake has occurred.

Plaintiff argues that the trial court's decision fails to find that she had made out a prima facie case of discrimination. We shall examine the evidence in the light of both the disparate impact and the disparate treatment approaches. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977).

A.

Consideration of plaintiff's case under the disparate impact principle.

Under the disparate impact theory, a prima facie case is established by showing that a particular job requirement or standard of selection operates to select applicants for hire or promotion in a pattern significantly different from that of the pool of applicants. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Woods v. North American Rockwell Corp., 480 F.2d 644 (10th Cir. 1973). Under this theory a prima facie case is established even if the job requirement at issue is facially neutral and even if no showing of intentional discrimination is made. Teamsters, supra. After such a prima facie case has been made out the burden shifts to the employer to demonstrate that the job requirement involved has a manifest relationship to the employment in question. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). The plaintiff then has an opportunity to respond to the defendant's showing that other selective methods or standards would serve the employer's legitimate interests in obtaining qualified employees without resulting in the disproportionate exclusion of a particular group.

One object of this approach is to restrict the use of subjective judgments in hiring and promotion where such a practice results over an extended period in the disproportionate non-selection of members of an aggrieved group. Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975); Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972). Subjective hiring and promotion decisions, particularly where made in the absence of...